UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


CASES 


ON   THE 


LAW  OF  SALES  OF  GOODS 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 

FREDERIC  CAMPBELL  WOODWARD 

PROFESSOR  OF  LAW  IN  LELAND  STANFORD  JR.  UNIVERSITY 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL   EDITOR 


ST.  PAUL 

WEST  PUBLISHING  COMPANY 

1913 


W?7  27  5 


COPTBIGHT,  1913 
BY 

WEST  PUBLISHING  COMPANY 
(Wood  w.  Sales) 


THE  AMERICAN  CASEBOOK 
SERIES 


For  years  past  the  science  of  law  has  been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely ;  but  the  system  is  faulty  and  must  pass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  thar 
as  the  process.  If  we  forget  the  rule  we  cannot  solve  the  problem;  if: 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory; it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be  short,  is  at  best  a  summary,  and  a  summary  presup- 
poses previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it ;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operates 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  i)ractical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  case  in  all  its  parts  develops  analysis, 
the  comparison   of   many   cases   establishes   a   general   principle,   and 

(iii) 


IV  PREFACE 

the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  training  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  Many  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  eflfort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


PREFACE  T 

treated  to  afford  a  basis  for  comparison  and  discrimination ;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion ; 
and  to  afford  the  mental  training  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration:  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly;    principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England ;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  somic  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections ; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


tl  PREFACE 

If  it  be  granted  that  all,  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year ;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 


Administrative  Law. 

•     Insurance. 

Agency. 

International  Law. 

Bills  and  Notes. 

Jurisprudence. 

Carriers. 

Mortgages. 

Contracts. 

Partnership. 

Corporations. 

Personal  Property,    including 

Constitutional  Law. 

the  Law  of  Bailment. 

Criminal  Law. 
Criminal  Procedure. 

Real  Property.  \  2d     ^"^' 

'      I  3d 

Common-Law  Pleading. 

Public  Corporations. 

Conflict  of  Laws. 

Quasi  Contracts. 

Code  Pleading. 

Sales. 

Damages. 

Suretyship. 

Domestic  Relations. 

Torts. 

Equity. 

Trusts. 

Equity  Pleading. 

Wills  and  Administration. 

Evidence. 

International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical. 


PREFACE  VIJ 

and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  annovmcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
have  written  or  are  at  present  actively  engaged  in  the  preparation  of 
the  various  casebooks  on  the  indicated  subjects: 

George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Law. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law 
School.     Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject, Torts. 

William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Lazv  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Professor  of  Law,  Northwestern  University 
Law  School.    Subject,  Wills  and  Administration. 

Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  Illinois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 
Subject,  Trusts. 

Charles  Thaddeus  Terry,  Professor  of  Law,  Columbia  University. 
Subject,  Contracts. 


▼iii  PEEFAOE 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.  Sub- 
ject, Persons. 

Edwin  C.  Goddard,  Professor  of  Law,  University  of  Michigan.  Sub- 
ject, Agency. 

Howard  L.  Smith,  Professor  of  Law,  University  of  Wisconsin.  Sub- 
ject, Bills  and  Notes.     (Co-author  with  Wm.  Underhill  Moore.) 

Wm.  Underhill  Moore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Bills  and  Notes.    (Co-author  with  Howard  L.  Smith.) 

Edward  S.  Thurston,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Subject,  Suretyship. 

Clarke  B.  Whittier,  Professor  of  Law,  University  of  Chicago.  Sub- 
ject, Pleading. 

Eugene  A.  Gilmore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Partnership. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.  Subject, 
Admijiistrative  Law. 

Frederick  Green,  Professor  of  Law,  University  of  IlHnois.  Subject, 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Conflict  of  Lazvs. 

Frederic  C.  Woodward,  Dean  of  the  .Stanford  University  Law  School. 
Subject,  Sales. 

James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity; formerly  Professor  of  Law,  Columbia  University,  New 
York  City.  Subjects,  International  La7v;  General  Jurisprudence; 
Equity. 

James  Brown  Scott, 
Washiington,  D.  C,  July,  1913.  General  Editor. 


Following  are  the  books  of  the  Series  now  published,  or  in  press: 

Admiuistrative    Law  Partnership 

Bills  and  Notes  Persona 

Carriers  Pleading 

Conflict  of  Laws  Sales 

Corporations  Suretyship 

Criminal  Law  Trusts 

Criminal  Procedure  Wills  and  Administration 

Damages 


PREFACE 


Inasmuch  as  there  are  a  number  of  comprehensive  and  reliable  trea- 
tises on  the  law  of  Sales,  I  have  deemed  it  unnecessary  to  attempt, 
by  the  elaborate  citation  of  authorities,  to  show  the  precise  state  of 
the  law,  either  upon  questions  considered  in  the  selected  cases  or 
upon  subordinate  or  related  points.  In  the  main,  therefore,  the  notes 
consist  of  references  to  cases  which,  though  for  one  reason  or  an- 
other not  selected  for  reprinting,  seem  to  me  to  be  of  particular  im- 
portance or  interest. 

My  task  has  been  incalculably  diminished,  of  course,  by  the  stand- 
ard treatises  on  the  subject  and  by  previous  casebooks,  and  I  desire 
to  acknowledge  in  particular  my  indebtedness  to  the  works  of  Ben- 
jamin, Mechem  and  Williston. 

F.  C.  W. 

Stanford  University,  California,  May  2,  1913. 

(ix)* 


TABLE  OF  CONTENTS 


CHAPTER  Ij 

Page 

Subject-Matteb  of  the  Coatract 1 

CHAPTER  II 
Transfeb  of  Property  and  Title 

Section 

1.  Unconditional  Contract  to  Sell  Specific  Goods— In  General 18 

2.  Contract  to   Sell   Specific   Goods  to  Which    Something   Remains   to 

be  Done   21 

3.  "Sale  or  Return"  and  "Sale  on  Approval"  38 

4.  "Cash   Sale"    44 

5.  Contract  to  Sell  Unascertained  Goods  of  a  Fungible  Nature 5G 

6.  Contract  to  Sell  Unascertained  Goods— Appropriation 78 

7.  Delivery  to  Carrier  as  Appropriation  116 

8.  Effect  of  Issue  of  Document  of  Title  and  of  Negotiation  or  Transfer 

Thereof    129 

9.  Effect  of  Sale  by  Bailee  or  Factor 201 

10.  Effect  of  Retention  of  Property  by  Seller  After  Delivery  to  Buyer— 

"Conditional   Sale"   224 

11.  Effect  of  Retention  of  Possession  by  Seller  after  Transfer  of  Proper- 

ty to  Buyer    243 

12.  Effect  of  Fraud  on  the  Seller 275 

CHAPTER  III 
Destruction  of  the  Goods — Risk  of  Loss 308 

CHAPTER  IV 
Obligations  of  Seller  and  Buyer 

1.  Express  Warranties   331 

2.  Implied  Warranty  of  Title    352 

3.  Implied  Warranty  of  Quality   357 

4.  Delivery  and  Payment 394 

5.  Inspection    416 

6.  Acceptance    430 

CHAPTER  V 
Rights  of  Unpaid  Seller  Against  the  Goods 

1.  Lien    446 

2.  Stoppage  in  Transitu 464 

3.  Resale  and  Rescission 524 

WooDW.  Sales  (xi) 


XU  TABLE  OF   CONTENTS 


CHAPTER  VI 

Section  REMEDIES    OF   THE    SELLER    ON   THE    CONTRACT  p 

1.  In   General    54n 

2.  In  "Coiiditioual  Sales"   557 

CHAPTER  yil 

Remedies  of  the  Buyer  on  the  Contract 578 

CHAPTER  VIII 

Statute  of  Frauds 

1.  "Contract  for  the  Sale  of  Goods"   594 

2.  "For  the  Price  of  £10  or  Upwards"  616 

3.  "Shall  be  Allowed   to  be  Good"    621 

4.  Acceptance  and  Receipt  of  Part  of  Goods   639 

5.  Earnest  or  Part  Payment   683 

6.  The  Note  or  Memorandum  699 

APPENDIX 

Sales  Act  753 

Sale  of  Goods  Act 772 


TABLE     OF  CASES 


[cases  cited  in  footnotes  are  indicated  by  italics,    where  small  capitals 
are  used,  the  case  is  referred  to  in  the  text] 


Page 

Aceha  v.  Levy  676 

Ackermau  v.  Rubens 530 

A.  D.  Fiiffei-  &  tions  Mfg.  Co.  v. 

Ldicas    574 

Aldridge  v.  Johnson 103 

Allen  V.   Elmore    36 

Ames  V.  Moir  461 

Amsinck  v.  American  Ins.  Co 624 

Amsiuck  v.  Bo.vlston  Mut.  Ins.  Co.  624 
Amsinck    v.    New    England    Mut. 

Ins.  Co 624 

Anchor  Mill  Co.  v.  Burlington,  C. 

R.  &  N.  R.  Co 179 

Anderson  v.  Crisp 75 

Anderson  v.  May 314 

Andrews  v.   Cheney   95 

Andrews  v.  Durant 84 

Arnold  v.   Delano    461 

Arques  v.  Wasson  7 

Atherton  v.  Newhall 67S 

Atkinson  v.  Bell    S9,  543 

Anltman  &  Co.  v.  Olson   565 

Austen  v.  Craven 73 

Austin  V.  Craven 59 

Bailey  v.  Hervey  559 

Bailey  v.  Sweeting 70S 

Barber  v.  Meyerstein  169 

Barnard  v.  Campbell 297 

Barnard  v.  Kellogg 364 

Barton  v.  Kane  118 

Bass,  Heard  d  Hoivlc  v.  Intrrna- 

tional  Harvester  Co 243 

Bates  V.  Smith 13 

Beckwith  v.  Talbot   732 

Bemeut  v.    Smith    543 

Benedict  v.  Schaettle 518 

Benedict  v.  Schaettle 522 

Berman  v.  Henry  N.  Clark  Co...  581 

Berndtson  v.  Strang 484 

Bethell  &  Co.  v.  Clark  &  Co 497 

Bibb  V.  Allen   719 

Bigelow  v.  Maine  Cent.  R.  Co....   394 

BiGGE  V.  Parkinson 389 

Bill  V.  Bament 643 

Bird  V.  Munroe 63.'] 

Blackman  v.  Pierce  48.') 

Bloxam  &  Warrington  v.  Sanders  446 


Page 

BOHTLINGK    V.    InCLIS     4S9 

Boswell  V.  Green  34 

Bowes  v.  Siiand 407 

Brewer  v.  Ilorst  &  Lachmund  Co.  730 

Bridgford  v.  Crocker  542 

Briygs  v.  United  States 623 

Bristol  V.  Mcnte 643 

Brooks  V.  Bcirnstcin 566 

Brown  v.  Whipple 735 

Bryans  v.  Nix   99 

Bryant  v.  Isburgh 585 

Burhank  v.  Crooker   243 

Burghall  v.  Howard 465 

Burnley  v.  Tufts 327 

Burt  V.  Dewey   355 

Butters  v.  Ilaughwout 301 

Buttericorth  v.  McKinly 25 

Cadogan  v.  Kennet 246 

Cahen  v.  Piatt 411 

Calcutta    »&   Burma h   Steam  Nav. 

Co.  V.  De  Mattos 314 

Calvert  v.  Sehultz   681 

Campion  v.  Marston  370 

Campion  v.  Mursion 441 

Carpenter  v.  Scott 237 

Catlin  v.  Jones 395 

Chandelor  v.  Lopus 3-32 

Chaplin  v.  Rogers 639 

Clark  v.  Greeley   46 

Cochrane  v.  Moore   18 

Cock,  In  re  491 

Cole  v.  Berry 233 

Colonial  Ins.  Co.  v.  Adelaide  Ma- 
rine Ins.  Co 108 

Commercial  Bank  v.  J.  K.  Arms- 

by  Co 194 

Continental  Jewelry  Co.  v.   Pugli 

Bros 589 

Cooke  V.  Millard 594 

Coon  V.  Rigdcn   700 

Cream    City    Glass   Co.    v.    Fried- 
lander   426 

Cross  V.  Gardner  332 

Crummey  v.  Raudenbush 458 

Cuff  v.  Penn 744,  749 

Cittf  V.  Penn   744 

Cummings  v.  Arnold 746 


Woodw.  Sales 


(xiii) 


XIV 


TABLE    OF    CASES 


Page 

Cundy  v.  Lindsay  275 

Currie  v.  Anderson 6~>i 

Cusack  V.  Robinson 657 

Davis  V.  Page 222 

Davis  V.   Shields   700 

Davis  Calyx  Drill  Co.  v.  Mallory  37S 

Da  we  V.  Morris 286 

Day  V.  Pool 433 

Dederiek  v.  Wolfe 566 

De  Mattos  v.  Calcutta  &  Burmah 

Steam    Nav.   Co 314 

Descalzi  Fruit  Co.   v.   William  S. 

Sweet  &  Son  442 

Dexter  v.  Norton 308 

Diem  v.  Koblitz   517 

Dierson  v.  Petersmeyer 677 

Dorsey  v.  Pike  643 

Douglas  v.  Shumway  461 

Drcxel  v.  Pease  166 

Driggs  V.  Bush    688 

Drury  v.  Young  705 

Duke  V.  Sliackleford 571 

Dustau  V.  McAudrew 526 

Eaton  V.  Blackburn   418 

Edan  v.  Dudfield 641 

Edgerton  v.  Modge 684 

Edwards  v.  Ilarben 243 

Edwards,  Hudmou  &  Co.  v.  Mead- 
ows    400 

EiCHHOLZ  V.  Bannister 353 

Elphick   V.   Barnes    38 

Ely  V.  Onnsby   623 

Emmerson  v.  Heelis 621 

Enterprise  Mfg.  Co.  v.  Oppvnhcim  413 

Evans  v.  Martlett  129 

Evans  v.  Roberts 597 

Eyers  v.  Haddem 590 

Farina  v.  Home 645 

Farmers'    &   Mechanics'    Bank    v. 

Logan    328 

Farmers'  &  Mechanics'  Nat.  Bank 

of  Buffalo  V.  Logan 156 

Farrell  v.  Manhattan  Market  Co.' 

(three  cases)   388 

Flint  Wagon  Works  v.  Moloney..  243 

Foley  v.  Felrath   41 

Frank  v.  Eltringham 710 

Freeh  v.  Lewis  52 

French  v.  8choo>tniaker 616 

GAnoNEE  V.  Dutch 64 

Gardner  v.  Grout   653 

Gaylord  Mfg.  Co.  v.  Allen 430 

George    Laichiy    &    Son    Corp.    v. 

Park    585 

George  W.   Merrill  Furniture  Co. 

V.  Hill  50 

Giffen  v.  Selma  Fruit  Co 416 


Page 

Gillett  V.   Hill    59 

Ginn  v.  W.  C.  Clark  Coal  Co 441 

GODDARD  V.  BiNNEY 595 

GoLDER  V.  Ogden 66 

Goodwin  v.  Mass.  Loan,  etc.,  Co..  .  307 

Gordon  v.   Norris    546 

Goss  V.  Lord  Nugent 747 

Gould  V.  Bourgeois  352 

Goulds  v.  Bropht 383 

Grant  v.  Fletcher   725 

Grantham  v.  Hawley 6 

Green  v.  Armstrong 604 

Green  v.  Edgar 442 

Green  v.  Lewis 631 

Greenwood  v.  Law   615 

Greenwood   Grocery  Co.  v.  Cana- 
dian County  Mill  &  Elevator  Co.  151 
Gunther  v.  Atwell    388 

Hammett  v.  Linncman 55 

Hand  v.  Matthews 48 

Hanson  v.  Marsh    711 

Hanson  v.  Meyer  25 

Hanson  v.   Meyer    34 

H.  A.  Prentice  Co.  v.  Page 222 

Harkness  v.  Russell 224 

Harman  v.  Reeve 616 

Hastie  v.  Couturier 1 

Hawkins  v.  Pemberton  340 

Hayden  v.  Dennts   546 

Haynes  v.  Temple 561 

Hays  V.  Jordan  572 

Hervey  v.  Dimond 239 

Hervey  v.  Rhode  Island  Locomo- 
tive Works  235 

Iliggins  V.  Kusterer 613 

Iliggins  V.  Senior 723 

Hilmer  v.  Hills 156 

HoARE  V.  Rennie 406 

Hobart  v.   Young .^4.") 

Hoe  V.  Sanborn 376 

HoUenberg  Music  Co.  v.  Barron.  .  328 

Holmes  v.  Tyson 340 

Hull  V.  Hull 10 

Hunt  V.  Jones 633 

Hunter  Bros.  Mill.  Co.  v.  Kramer 

Bros 125 

Hutchinson  v.  Hunter 65 

Idaho,  The  143 

Ingalls  V.  Herriok  253 

Ireland  v.  Johnson 694 

Jackson  v.  Anderson 64,     72 

Jackson  v.  Stantield   625 

Jackson  v.  Tupper 698 

James  Drummond  &  Sons  v.  E.  H. 

Van  Ingen  &  Co 384 

Janney  v.  Sleeper  394 

Jendwine  v.  Slade 333 

Jendwine  v.  Slade 3.36 


TABLE    OF    CASES 


XV 


Page 

Jenner  v.  Smith '.»2 

Joiness  t'.  Wendell 621 

Jennings  &  Silvey  v.  Dunham.  . .  .  683 
J.  M.  Arthur  d   Co.  v.  Bhickman  328 

Johnson  v.  Eveleth  512 

Johnson  v.  Hunt 81 

Johnson  v.  lankovc.tz  55 

Johnson  &  Miller  v.  Buck T24 

Johnston  v.  Trask   67!) 

Jones  v.  Bright 373 

Jones  V.  Just   357 

Jones  Bros.  v.  Joyner 727 

J.   W.  Ellison,  t<on  &  Co.  v.  Flat 
Top  Grocery  Go 413 

Kellogg  Bridge  Co.  v,  Hamilton  381 

Kemp  V.  Falk  477 

Kimberly  v.  Patchin 67 

Knights  V.  Wiffen   59 

Kranert  v.  Simon 307 

Kreiif/er,  In  re 241 

Kriete  v.  Thomas  J.  Myer  &  Co.  713 
Krohn  v.  Bantz 692 

Lamprey  v.    Sargent    77 

Lanfear  v.  Sumner   249 

Lang  fear  v.  Sunnier 253 

Langton  v.  Higgins 105 

Langton  v.  Iliggins   S 

La  very  v.  Pursell 608 

Leask  v.  Seott   304 

Lee  V.  Gaskell 612 

Lee  v.  Griffin 595 

Lt-rned  v.  ^'S'annemachor   7.'>S 

Leven  v.  Smith 44 

Levi  V.  Booth   203 

Libby  v.  Haley    589 

Lickbarrovp  v.  Mason 465 

Lincoln  v.  Gallagher 429 

Lingham  v.  Eggleston   34 

Logan  v.  Carroll   694 

Long  V.  White   612 

Lothrop  V.  Wightman 267 

Louisville     Lithographic     Co.     v. 

Schedler   424 

Lovell  v.  Isidore  Newman  &  Son.  .   141 

Low  v.  Pew    15 

Lyon  V.  Bertram 585 

McArthur  Co.  v.  Old  Seeond  ^"at. 

Bank   200 

McConihe  v.  New  York  &  E.  R.  Co.  328 
McElwee  v.  Metropolitan  Lumber 

Co 450 

McFarland  v.  Newman 336 

McKibbin  v.  Kline   256 

McKibbin  v.  Martin 256 

Maclean  v.  Dunn 526 

McNeal  v.  Braun   320,  416 

McNeal  v.  Braun  129 

Mahan  v.  United  States 621 


Pnse 

Marshall  v.  Green 601 

Marshall  v.  Li/on 744 

Martindale  v.   Booth    247 

Martindale  v.   Smith    524 

Martineau  v.  Ivitching 323 

Meade  v.  Smith  253 

Memphis  &  L.  R.  R.  Co.  v.  Freed  500 

Meredith  v.  Meigh 676 

Merritt  &  Merritt  v.  fJlason 699 

Mersey  Co.  v.  Naylor 409 

Miller  V.  Baker  608 

Miller  v.   Steen    568 

Milliken  v.  Skillings 586 

Milos  V.  Covacevich 696 

Minneapolis   Harvester   Works    v. 

Hally 564 

Minneapolis  Harvester   Works  v. 

Hally    565 

Mirabita     v.     Imperial     Ottoman 

Bank    134 

Mitchell  V.  Le  Clair 96 

Moakes  v.  Nicholson 147 

Mondel  v.  Steel 578 

Moody  V.  Aiken 612 

Moor  V.  Rus.seJl 331 

Moore  v.  Louisiana   Nat.    Rank..  198 

Moore  v.  Potter 530 

Moors  V.  Kidder 166 

Morin  v.   Martz   70."> 

.Morse  v.  Moore 437 

Morton  v.  Tibbett 647 

MucKLow  V.  Mangles 83 

Myers  v.  Harvey 267 

Newell  V.  Radford 709 

New    England    Dressed    Meat    & 

Wool   Co.   V.   Standard  Worsted 

Co 722 

Newhall  v.  Central  Pac.  R.  Co...  475 

NiCHOL  V.  GoDTS 374 

Nicholson  v.  Taylor   32 

Nixon   v.   Brown    209 

Noble  V.  Ward  745 

Norriugtou  v.  AVright 401 

Norris  v.  Parker 347 

Nortli  Alaska  Salmon  Co.  v.  Hohbs 

Wall  <&  Co 436 

North  &  Co.  V.  Mendel  &  Bro 716 

Nutting  V.  Watson,  Woods  Bros.  & 

Kelly  Co 593 

O'Connor  v.  Clark 212 

Ogle   V.    Atkinson    166 

O'Neal  V.  Day 509 

O'Neil  V.  Grain 712 

Ontario  Deciduous  Fruit  Growers' 
Ass'n  V.  Cutting  Fruit  Packing 
Co 311 

OXENDALE  V.  WETHERELL 112 

Page  V.   Morgan    662 


XVI 


TABLE    OP    CASES 


Page 

Paine  &  Gekler  v.  Toimg 28 

Parsons  v.  Loucks 59G 

Parton  v.  Crofts TliG 

Fasley  v.  Freeman   352 

Fevke  v.  Nedinun   19 

People  v.  Shri\  er 121 

Pfeifer  v.  Norm  an  577 

Philadelphia    Whiting     Co.     v. 

Detroit  White  Lead  Works.  . .  428 

Pickering  v.  Busk   201 

Pierce  v.  Chipman 272 

PiERsoN  V.  Crooks 420 

Pleasaxts  v.  Pendleton 63,  72 

Pollard  V.  Reardou  1S9 

Power  V.  Barham 335 

Powers  V.  Briggs  351 

Pratt  V.  S.  Freeman  &  Sous  Mfg. 

Co 533 

Priest  V.   Last   377 

Punier  V.  Picnti 608 

Putnam  v.  Glidden   554 

Randall  v.  Newson 372 

Raylield  v.  Van  Meter 574 

Reardon  v.  Pollard 189 

Reybold  v.  A'oorbees 413 

Reynolds  v.  Boston  &  M.  R.  R 507 

Ridgley  v.  Mooneij 542 

Robinson  v.  Pogue 149 

Rocbester  &  01eoi>oiis  Oil  Co.  v. 

Hugbey 113 

Rodgers  v.  Pbillips 670 

Rodliff  V.  Dalliuger 278 

Rogers  v.  Thomas  518 

Romeo  v.  Martucci 218 

Rosevear  Cbina  Clay  Co.,  Kx  parte  491 
Rugg  V.  Minett 21 

Salmon  Falls  Mfg.  Co.  v.  Goddard  703 

Saltus  V.   Everett   2SS 

Samuel  M.  Lawder  &  Sous  Co.  v. 

Albert  Mackie  Grocery  Co 423 

Sanger  v.  Waterbury  36 

Scudder  v.  Worster   62 

Selby  V.  Selby 700 

Shaw  V.  Gilmore 8 

Shaw   V.    North   Pennsylvania   R. 

Co 181 

Sbelton  v.  Thompson 628 

Sbiudler  v.  Houston 665 

Sleeper  v.  Davis 305 

Smith  V.  Clctcs  209 

Smith  V.   Edwards    116 

Smith  V.  Hale 589 

Smith  V.  Smith   286 

Snee  &  Baxter  v.  Prescott 468 

Somerhy  r.  Buntin 616 

South  Baltimore  Co.  v.  iluhlbueh  612 

Spalding  v.  Ruding 486 

Spooner  v.  Cummiugs 241 

Spooner  v.  Handley   241 


Page 

State  V.  American  E.rp.  Co 122 

State  V.   Four  Jugs  of   Intoxicat- 
ing Liquor   119 

State  V.  OXeil  119 

State  V.  O'Xril  122 

State   V.    Peters    122 

State  V.  Fottm(  !/>  r 615 

State  V.   Sixty-Eiicht  Jugs  of   In- 
toxicating Liquor 119 

Stead  V.  Dawber  743 

Stead  V.  Dairher 744 

Sterols  V.  Iricin 26S 

Stewart  v.  Emekson 285 

Stimsou  V.  Wrigley  264 

Stoddard  v.   Ham' 282 

Stollenwerck  v.  Tbaclier 186 

Stone  V.  Broiviung   677 

Stone  V.  Perry   48 

Street  v.  Blay 582 

Stuart  V.   Wilkins   331 

Swift  V.  Rounds 282 

Tarling  v.  Baxter   19 

Taylor  v.  Great  Eastern  R.  Co...   625 

Taylor  v.  Smith    66") 

Terry  v.  Wheeler 451 

Third  Xat.  Bank  v.  Armstrong.  . .   566 

Thomason  v.  Lewis 563 

Tilson  v.  Terwilliger 267 

Tomlinson  v.  Armour  d  Co 394 

Trinidad     Asphalt    Mfg.     Co.     v. 

Buekstaff  Bros.  Mfg.  Co 554 

Tufts  v.   Grewer    551 

Turley  v.  Bates 28 

Turner  v.   Trusters    134 

United  States  v.  Androivs 129 

Wait  V.  Baker   129 

M'aite  V.  McKelvy 623 

Walker  v.  Nussoy   694 

Walker  v.  Supple   616 

Walker  v.  Walk-r 703 

Warner  v.  Martin   213 

Wasatch   Orchard  Co.   v.   Morgan 

Canning  Co 593 

Weeks  v.  Crie 618 

Weeks  v.  Fowler 269 

Welter   v.   Hill    9 

White  V.  Garden 286 

White  v.  Oakes 376 

White  V.  Solomon   551 

Whitehead  v.  Anderson 506 

Whitehouse  v.  Frost 56 

Whitehouse  v.  Frost  59 

Whitnmrsh  v.  Walker 60S 

Wigto7i  V.  Boiclcy  151 

Wilkinson  v.  King 201 

Williams  v.  Robinson   715 

Williams  Cooperage  Co.  v.  Scoficld  442 
Williamsburg  Knitting  Mill,  In  re  241 


TABLE    OF    CASES 


XVU 


Page 

Wiltse  V.  Barnes  424 

Wiseman  v.  Vandeputt 464 

Wisp  V.  Hazard  223 

Wood  V.  Bell  81 

Wood  V.   Smitli    334 

Woods  V.  Russell 78 


Pago 
Wrigley  v.  Cornelius 542 

Young  v.  Matthews 25 


Zal)riskie 
Co.   ... 


V.   Central  Vermont  R. 


433 


WooDw.  Sales— b 


A 


CASES  ON  THE  LAW  OF  SALES 


CHAPTER  I 
SUBJECT-MATTER  OF  THE  CONTRACT 


HASTIE  V.  COUTURIER. 

(Court  of  Exchequer  Chamber,  1S53.     9  Exch.  102.) 

The  plaintiffs  were  merchants  at  Smyrna;  the  defendants  were 
corn  factors  in  London ;  and  this  action  was  brought  to  recover  from 
them  the  price  of  a  cargo  of  Indian  corn,  which  had  been  shipped  at 
Salonica,  on  board  a  vessel  chartered  by  the  plaintiff's  for  a  voyage 
to  England,  and  had  been  sold  in  London  by  the  defendants  in  error, 
upon  a  del  credere  commission.  The  purchaser,  under  the  circum- 
stances hereafter  stated,  had  repudiated  the  contract. 

In  January,  1848,  the  plaintiffs  chartered  a  vessel  at  Salonica,  to 
bring  a  cargo  of  1,180  quarters  of  corn  to  England.  On  the  8th  of 
February  a  policy  of  insurance  was  effected  on  "corn,  warranted  free 
from  average,  unless  general,  or  the  ship  be  stranded."  On  the  22d 
of  that  month,  the  master  signed  a  bill  of  lading,  making  the  corn 
deliverable  to  the  plaintiffs,  or  their  assigns,  '"he  or  they  paying 
freight,  as  per  charter-party,  with  primage  and  average  accustomed." 
On  the  23d  February,  the  ship  sailed  on  the  homeward  voyage.  On 
the  1st  May,  1848,  IMessrs.  Bernouilli,  the  London  agents  of  the  plain- 
tiff's, and  the  persons  to  whom  the  bill  of  lading  had  been  indorsed, 
employed  the  defendants  to  sell  the  cargo,  and  sent  them  the  bill  of 
lading,  the  charter-party,  and  the  policy  of  insurance,  asking  and  re- 
ceiving thereon  an  advance  of  i600. 

On  the  15th  May  the  defendants  sold  the  cargo  to  A.  B.  Cal- 
lander, who  signed  a  bought  note,  in  the  following  terms :  "Bought 
of  Hastie  &;  Hutchinson,  a  cargo  of  about  1,180  (say  eleven  hun- 
dred and  eighty)  quarters  of  Salonica  Indian  corn,  of  fair  average 
quality  when  shipped  per  the  Kezia  Page,  Captain  Page,  from  Salon- 
ica ;  bill  of  lading  dated  twenty-second  February,  at  27s,  (say  twenty- 
seven  shillings)  per  quarter,  free  on  board,  and  including  freight  and 
insurance,  to  a  safe  port  in  the  United  Kingdom,  the  vessel  calling 
at  Cork  or  Falmouth  for  orders;  measure  to  be  calculated  as  cus- 
tomary; payment  at  two  months  from  this  date,  or  in  cash,  less  dis- 
WooDW. Sales — 1 


2  SUBJECT-MATTER   OF    THE    CONTRACT  (Ch.  1 

count,  at  the  rate  of  five  per  cent,  per  annum  for  the  unexpired  time, 
upon  handing  shipping  documents." 

In  the  early  part  of  the  homeward  voyage,  the  cargo  became  so 
heated  that  the  vessel  was  obliged  to  put  into  Tunis,  where,  after 
a  survey  and  other  proceedings,  regularly  and  bona  fide  taken,  the 
cargo  was,  on  the  22d  April,  unloaded  and  sold.  It  did  not  appear 
that  either  party  knew  of  these  circumstances  at  the  time  of  the  sale. 
The  contract  having  been  made  on  the  15tli  of  jNIay,  Mr.  Callander, 
on  the  23d  of  ^lay,  wrote  to  Hastie  &  Hutchinson :  "I  repudiate  the 
contract  of  the  cargo  of  Indian  corn,  per  the  Kezia  Page,  on  the 
ground  that  the  cargo  did  not  exist  at  the  date  of  the  contract,  it  ap- 
pearing that  the  news  of  the  condemnation  and  sale  of  this  cargo 
at  Tunis,  on  the  22d  April,  was  published  at  Lloyd's,  and  other  papers, 
on  the  12th  instant,  being  three  to  four  days  prior  to  its  being  ottered 
for  sale  to  me." 

The  plaintiffs  afterwards  brought  this  action.  The  declaration  was 
in  the  usual  form.  The  defendants  pleaded  several  pleas,  of  which 
the  first  four  are  not  now  material  to  be  considered.  The  fifth  plea 
was  that  before  the  sale  to  Callander,  and  whilst  the  vessel  was  on 
the  voyage,  the  plaintiffs  sold  and  delivered  the  corn  to  other  persons, 
and  that  since  such  sale  the  plaintiff's  never  had  any  property  in  the 
corn  or  any  right  to  sell  or  dispose  thereof,  and  that  Callander  on  that 
account  repudiated  the  sale,  and  refused  to  perform  his  contract,  or  to 
pay  the  price  of  the  corn.  Sixthly,  that  before  the  defendants  were 
employed  by  the  plaintiff's,  the  corn  had  become  heated  and  greatly 
damaged  in  the  vessel,  and  had  been  unloaded  by  reason  thereof,  and 
sold  and  disposed  of  by  the  captain  of  the  said  vessel  on  account  of 
the  plaintiffs  at  Tunis,  and  that  Callander,  for  that  reason,  repudiated 
the  sale,  etc. 

The  cause  was  tried  before  Mr.  Baron  Martin,  when  his  Lordship 
ruled  that  the  contract  imported  that  at  the  time  of  the  sale,  the  corn 
was  in  existence  as  such,  and  capable  of  delivery,  and  that  as  it  had 
been  sold  and  delivered  by  the  captain  before  this  contract  was  made, 
the  plaintiff's  could  not  recover  in  the  action.  He  therefore  directed 
a  verdict  for  the  defendants.  The  case  was  afterwards  argued  in 
the  Court  of  Exchequer  before  the  Lord  Chief  Baron,  ]\Ir.  Baron 
Parke,  and  Mr.  Baron  Alderson,  when  the  learned  Judges  differed 
in  opinion,  and  a  rule  was  drawn  up  directing  that  the  verdict  found 
for  the  defendants  should  be  set  aside  on  all  the  pleas,  except  the 
sixth,  and  that  on  that  plea  judgment  should  be  entered  for  the  plain- 
tiff's, non  obstante  veredicto;  that  the  defendants  should  be  at  lib- 
erty to  treat  the  decision  of  the  Court  as  the  ruling  at  nisi  prius,  and 
to  put  it  on  the  record  and  bring  a  bill  of  exceptions.  8  Exch.  40. 
This  was  done,  and  the  Lord  Chief  Baron  sealed  the  bill  of  excep- 
tions, adding,  however,  a  memorandum  to  the  eff'ect  that  he  did  so 


Ch.  1)  SUBJECT-MATTER   OF    THE    CONTRACT  O 

as  the  ruling  of  the  Court,  but  that  his  own  opinion  was  in  opposi- 
tion to  such  ruling. 

The  case  was  argued  on  the  bill  of  exceptions  in  the  Exchequer 
Chamber,  before  Justices  Coleridge,  Maule,  Cresswell,  Wightman, 
Williams,  Talfourd,  and  Crompton,  who  were  unanimously  of  opinion 
that  the  judgment  of  the  Court  of  Exchequer  ought  to  be  reversed. 
9  Exch.  102.    The  present  writ  of  error  was  then  brought. 

The  Judges  were  summoned,  and  Mr.  Baron  Alderson,  Mr.  Jus- 
tice Wightman,  Mr.  Justice  Cresswell,  Mr.  Justice  Erie,  Mr.  Justice 
W^illiams,  Mr.  Baron  Alartin,  Mr.  Justice  Crompton,  Mr.  Justice 
Willes,  and  Mr.  Baron  Bramwell  attended. ^ 

Coleridge,  J,^  The  case  was  originally  tried  before  ^Martin,  B.,  who, 
in  directing  the  jury  ruled  that  the  contract  imported  that,  at  the  time 
of  the  sale,  the  corn  was  in  existence  as  such,  and  capable  of  deliv- 
ery, and  a  verdict  was  found  for  the  defendants,  the  plaintiffs  having 
leave  to  move  to  enter  a  verdict  in  their  favour  on  all  the  issues 
except  those  on  the  fifth  and  sixth  pleas,  and  on  those  pleas  for  judg- 
ment non  obstante  veredicto.  The  case  was  argued  before  the  Lord 
Chief  Baron  and  Barons  Parke  and  Alderson.  The  lord  chief  baron 
agreed  in  the  opinion  expressed  by  Martin,  B.,  at  nisi  prius ;  but  the 
other  learned  barons  differed  from  him,  and  made  the  rule  absolute ; 
whereupon  it  was  agreed  that  the  question  should  be  brought  before 
this  court  on  a  bill  of  exceptions,  as  if  the  lord  chief  baron  had  di- 
rected the  jury  in  conformity  with  the  opinion  of  Barons  Parke  and 
Alderson.  The  case  therefore  comes  before  us  without  any  great  pre- 
ponderance of  authority  in  favour  of  the  defendants  in  error.  Nor 
do  we  find  in  the  arguments  of  counsel,  or  in  the  judgment  of  the 
court  below,  any  case  referred  to  upon  which  that  judgment  was 
founded.  It  turned  entirely  on  the  meaning  of  the  contract  made  be- 
tween the  parties,  which  was  in  these  terms:  "Bought  of  Hastie  & 
Hutchinson  a  cargo  of  about  1180  quarters  of  Salonica  Indian  corn 
of  fair  average  quality  when  shipped  per  the  'Kezia  Page,'  Captain 
Page,  from  Salonica,  bill  of  lading  dated  the  22d  of  February,  at  27s. 
per  quarter,  free  on  board,  and  including  freight  and  insurance  to 
a  safe  port  in  the  United  Kingdom,  the  vessel  calling  at  Cork  or 
Falmouth  for  orders,  measure  to  be  calculated  as  customary,  payment 
at  two  months  from  this  date,  or  in  cash,  less  discount  at  the  rate 
of  £5  per  cent,  per  annum  for  the  unexpired  time  upon  handing  i 
shipping  documents."  An  attempt  was  made  to  explain  this  document 
by  evidence,  but  failed.  There  is,  indeed,  an  expression  in  the  bill 
of  exceptions,  "that  the  meaning  of  free  on  board  is,  that  the  goods 
are  on  board,"  which,  taken  literally,  may  import  that  they  are  on 

1  This  statement  of  the  facts  and  pleadings  is  taken   from  the  report  of 
the  case  in  the  House  of  Lords  (5  H.  L.  C.  *673),  where  the  judgment  of  the 
Exchequer  Chamber  was  affirmed. 
2  In  the  Exchequer  Chamber. 


4  SUBJECT-MATTER  OF    THE    CONTRACT  (Ch.  1 

board  at  the  time  when  the  words  are  used ;  but  it  was  not  contended 
for  the  plaintiffs  in  error  that  such  is  the  true  meaning.  The  case, 
therefore,  is  not  affected  by  that  statement,  and  the  question  depends 
upon  the  words  of  the  contract,  unexplained  by  any  evidence. 

For  the  plaintiffs  in  error  it  was  contended,  that  the  parties  plainly 
contracted  for  the  sale  and  purchase  of  goods,  that  the  price  to  be  paid 
was  for  goods,  and  that  for  the  price  the  purchaser  was  to  have  the 
benefit  of  a  contract  to  carry  them  and  a  policy  of  insurance;  that 
a  vendor  of  goods  undertakes  that  they  exist,  and  that  they  are  capable 
of  being  transferred,  although  he  may  not  stipulate  for  their  condi- 
tion ;  and  that  as  the  goods  in  question  had  been  sold  and  delivered 
to  other  parties  before  the  contract  in  question  was  made,  there  was 
nothing  on  which  it  could  operate;  and  Barr  v.  Gibson,  3  M.  &  W. 
390,  and  Strickland  v.  Turner,  7  Exch.  208,  were  cited. 

On  the  other  hand  it  was  argued,  that  this  was  not  a  mere  con- 
tract for  the  sale  of  an  ascertained  cargo,  but  that  the  purchaser 
bought  the  adventure,  and  took  upon  himself  all  risks  from  the  ship- 
ment of  the  cargo.  It  was  said  that  the  mention  of  the  condition  of 
the  cargo  at  the  time  of  shipment  was  a  proof  of  the  intention  of 
the  parties  that  the  buyer  should  take  all  risks  from  that  time;  that 
its  condition  at  the  time  of  sale,  or  the  fact  of  its  existence,  could 
not  then  be  ascertained,  and  therefore  the  purchaser  must  be  sup- 
posed to  have  taken  the  risks;  that  if  it  had  existed,  however  much 
deteriorated,  the  purchaser  must  have  taken  it,  although  the  loss  had 
been  all  but  total,  and  therefore  there  was  no  reason  for  excluding 
total  loss  from  the  risks  that  he  was  to  bear;  that  if  it  had  ceased 
to  exist  the  consideration  would  not  fail,  for  the  purchaser  would 
have  the  shipping  documents.  It  was  further  argued  that  the  stipula- 
tion for  payment,  which  would  probably  have  to  be  made  before  the 
arrival  of  the  cargo,  indicated  an  intention  that  the  purchaser  "was 
in  all  events  to  pay  for  it,  on  account  of  the  inconvenience  that  would 
ensue  if  he  might  have  to  reclaim  the  money  back.  It  was  not  dis- 
puted that  the  cases  of  Barr  v.  Gibson  and  Strickland  v.  Turner  were 
well  decided. 

It  appears  to  us  that  the  contract  in  question  was  for  the  sale  of  a 
cargo  supposed  to  exist,  and  to  be  capable  of  transfer,  and  that,  inas- 
much as  it  had  been  sold  and  delivered  to  others  by  the  captain  be- 
fore the  contract  in  question  was  made,  the  plaintiff's  cannot  recover 
in  this  action.  With  regard  to  the  description  of  the  cargo  as  "of  fair 
average  quality  when  shipped,"  we  think  that,  if  those  words  had  not 
been  introduced,  it  must  have  been  held  that  the  purchaser  of  a  cargo 
on  a  voyage  would  take  upon  himself  the  chance  of  what  its  condition 
at  the  time  of  purchase  might  be,  and  that  this  clause  was  introduced 
for  his  benefit,  by  enabling  him  to  object,  if  the  fact  were  so,  that  the 
carg'o  was  bad  when  shipped.    If,  in  Barr  v.  Gibson,  there  had  been  a 


Ch.  1)  SUBJECT-MATTER  OF    THE    CONTRACT  5 

Stipulation  that  the  ship,  when  she  sailed  on  the  voyage  during  which 
she  was  sold,  was  seaworthy,  that  would  not  have  made  the  purchaser 
liable,  if  a  total  loss  had  occurred  before  the  contract  was  entered  into. 
It  has  been  said,  that  if  the  loss  had  been  all  but  total,  if  the  cargo  had 
become  all  but  worthless,  yet,  if  it  existed  in  specie,  the  purchaser 
must  unquestionably  have  been  bound,  and  therefore  there  is  no  reason 
for  holding  that  he  was  not  also  to  take  the  risk  of  a  total  loss.  The 
same  argument  would  have  applied  in  Strickland  v.  Turner.  If  the 
annuitant,  at  the  time  of  the  sale  of  the  annuity,  had  been  in  extremis, 
and  had  died  the  next  hour,  the  purchaser  would  have  been  bound 
and  could  not  have  recovered  the  purchase  money,  but  was  held  to  be 
so  entitled,  the  annuitant  having  died  before  the  sale.  Again,  it  has 
been  supposed  that  there  is  an  inconsistency  in  saying  that,  if  the 
cargo  had  sustained  sea  damage,  constituting  an  average  loss  covered 
by  the  policy,  it  would  pass  to  the  purchaser  so  as  to  secure  to  him  an 
indemnity,  but  would  not  pass  in  the  event  of  a  total  loss.  This 
seems  to  depend  upon  the  same  point,  and  not  to  be  attended  with 
any  real  difficulty. 

If  the  contract  for  sale  of  the  cargo  was  valid,  the  shipping  docu- 
ments would  pass  as  accessories  to  it ;  but  if,  in  consequence  of  the 
previous  sale  of  the  cargo,  the  contract  failed  as  to  the  principal  sub- 
ject-matter of  it,  the  shipping  documents  would  not  pass.  Although 
we  cannot  find  any  decision  in  point,  there  is  a  case  of  Sutherland  v. 
Pratt,  11  M.  &  W.  296,  where  this  subject  was  mentioned.  In  that 
case,  the  plaintiff  had  bought  goods  on  a  voyage,  and  effected  an  in- 
surance, lost  or  not  lost.  They  had  sustained  sea  damage  before  the 
sale,  and  the  purchaser  sued  on  the  policy.  The  underwriters  pleaded 
that  the  goods  were  damaged  before  the  plaintiff  had  acquired  any 
interest  in  them.  On  demurrer,  it  was  held  that  the  plea  was  bad; 
but  the  very  learned  counsel  who  argued  for  the  plaintiff  admitted,  in 
answer  to  a  question  put  by  Parke,  B.,  that  if  the  goods  had  been 
totally  lost  before  his  contract  of  purchase  was  made,  there  would 
not  have  been  an  insurable  interest,  as  a  person  cannot  buy  a  thing 
that  has  been  totally  lost. 

For  these  reasons,  it  appears  to  us  that  the  basis  of  the  contract 
in  this  case  was  the  sale  and  purchase  of  goods,  and  that  all  the  other 
terms  in  the  bought  note  were  dependent  upon  that,  and  that  we  can- 
not give  to  it  the  effect  of  a  contract  for  goods  lost  or  not  lost.  The 
consequence  is,  that  the  judgment  of  the  court  below  must  be  re- 
versed, and  entered  for  the  plaintiffs  in  error  according  to  arrange- 
ment between  the  parties. 

Judgment  reversed. 


6  SUBJECT-MATTER  OF    THE    CONTRACT  (Ch.  1 

GRANTHAM  v.  HAWLEY. 

(Court  of  Common  Pleas.  1616.     Hob.  132.) 

Robert  Grantham  brought  an  action  of  debt  upon  an  obligation 
of  forty  pounds  against  Edward  Hawley,  the  condition  whereof  was, 
that  if  a  certain  crop  of  corn  growing  upon  a  certain  piece  of  ground, 
late  in  the  occupation  of  Richard  Sankee,  did  of  right  belong  to  the 
plaintiff,  then  the  defendant  should  pay  him  for  it  twenty  pounds. 
Now  the  case  upon  the  pleading  and  demurrer  fell  out  thus ;  that 
one  Sutton  was  seised  of  the  land,  and  30  Eliz.  in  April,  made  a 
lease  of  it  to  Richard  Sankee  for  twenty-one  years  by  indenture,  and 
did  thereby  covenant,  grant  to  and  with  Sankee,  his  executors  and 
assigns,  that  it  shall  be  lawful  for  him  to  take  and  carry  away,  to 
his  own  use,  such  corn  as  should  be  growing  upon  the  ground  at 
the  end  of  the  term.  Then  Sutton  conveyed  the  reversion  to  the 
plaintiff;  and  John  Sankee,  executor  to  Richard,  having  sowed  the 
corn,  and  that  being  growing  upon  the  ground  at  the  end  of  the 
term,  sold  it  to  the  defendant.  And  it  was  argued  by  Hutton  for 
the  plaintiff,  that  it  was  merely  contingent  whether  there  should  be 
corn  growing  upon  the  ground  at  the  end  of  the  term,  or  not.  Also, 
the  lessor  never  had  property  in  the  corn ;  and  therefore  could  not 
give  nor  grant  it,  but  it  sounded  properly  in  covenant;  for  the  right 
of  the  corn  standing  in  the  end  of  the  term  being  certain,  accrues 
with  the  land  to  the  lessor;  and  it  was  said  to  be  adjudged.  And  it 
was  agreed  by  the  court  that  if  A.',  seised  of  land,  sow  it  with  corn, 
and  then  convey  it  away  to  B.  for  life,  remainder  to  C.  for  life,  and 
then  B.  die  before  the  corn  reapt;  now  C.  shall  have  it,  and  not  the 
executors  of  B.,  though  his  estate  was  uncertain.  Note,  the  reason  of 
industry  and  charge  in  B.  fails;  yet  judgment  in  this  case  was  given 
against  the  plaintiff,  that  is,  that  the  property  and  very  right  of  the 
corn,  when  it  happened,  was  past  aw^ay;  for  it  was  both  a  covenant 
and  a  grant.  And  therefore  if  it  had  been  of  natural  fruits,  as  of 
grass  or  hay,  which  run  merely  with  the  land,  the  like  grant  would 
have  carried  them  in  property  after  the  term.  Now  though  corn 
be  fructus  industrialis,  so  that  he  that  sows  it  may  seem  to  have  a 
kind  of  property,  ipso  facto,  in  it,  divided  from  the  land ;  and  there- 
fore the  executor  shall  have  it,  and  not  the  heirs;  yet  in  this  case, 
all  the  colour  that  the  plaintiff  hath  to  it,  is  by  the  land  which  he 
claims  from  the  lessor  which  gave  the  corn.  And  though  the  lessor 
had  it  not  actually  in  him,  nor  certain,  yet  he  had  it  potentially;  for 
the  land  is  the  mother  and  root  of  all  fruits.  Therefore  he  that  hath 
it  may  grant  all  fruits  that  may  arise  upon  it  after,  and  the  property 
shall  pass  as  soon  as  the  fruits  are  extant,  as  21  Hen.  VI.  A  par- 
son may  grant  all  the  tithe  wool  that  he  shall  have  in  such  a  year; 
yet  perhaps  he  shall  have  none;  but  a  man  cannot  grant  all  the  wool 


Ch.  1)  SUBJECT-MATTER   OF    THE    CONTRACT  T 

that  shall  grow  upon  his  sheep  that  he  shall  buy  hereafter;  for  there 
he  hath  it  neither  actually  nor  potentially.  And  though  the  words  are 
here  not  by  words  of  gift  of  the  corn,  but  that  it  shall  be  lawful  for 
him  to  take  it  to  his  own  use,  it  is  as  good  to  transfer  the  property ; 
for  the  intent  and  common  use  of  such  words,  as  a  lease  without  im- 
peachment of  waste,  for  the  like  reason,  and  not  ex  vi  termini,  gives 
the  trees. 


ARQUES  V.  WASSON. 

(Supreme  Court  of  California,  1S77.     51  Cal.  620,  21  Am.  Rep.  718.) 

Crockett,  J.  The  action  is  replevin  to  recover  from  the  sheriff 
certain  grain  and  flax  seed  seized  and  sold  by  him  under  an  attach- 
ment and  execution  against  one  Hansen.  The  findings  show  that 
Hansen  leased  from  the  plaintiffs  a  parcel  of  land,  and  from  one 
Reed  an  adjoining  parcel,  of  both  of  which  he  was  in  possession  under 
the  leases ;  that  to  secure  the  rent  to  be  paid  to  the  plaintiffs,  and  also 
a  store  account  which  he  owed  them,  he  duly  executed  and  delivered 
to  them  a  mortgage  (which  was  duly  recorded),  upon  all  the  crops  of 
every  kind  to  be  produced  on  said  lands  during  the  next  ensuing  crop- 
ping season ;  that  at  the  date  of  the  mortgage  Hansen  was  in  posses- 
sion of  the  land,  but  had  not  then  plowed  it  or  sowed  the  seed,  but 
proceeded  to  do  so  very  soon  thereafter  and  produced  the  crop  which 
is  in  controversy ;  that  when  the  crop  had  matured  and  had  been  par- 
tially harvested,  it  was  seized  by  the  defendant  as  sheriff,  under  an 
attachment  at  the  suit  of  another  creditor  of  Hansen,  and  was  sub- 
sequently sold  by  the  defendant  under  an  execution  issued  upon  the 
judgment  in  said  action.  The  plaintiff'  recovered  and  the  defendant 
appeals. 

The  point  chiefly  relied  upon  for  a  reversal  is,  that  at  the  date  of 
the  mortgage  the  crop  had  not  even  a  potential  existence,  the  ground 
not  having  been  plowed  or  the  seed  sown ;  and  it  is  claimed  that  there 
can  be  no  valid  mortgage  of  a  thing  not  in  esse.  It  is  conceded  by 
counsel  that  if  the  thing  has  a  potential  existence,  as,  for  example, 
wool  to  be  grown  from  sheep  then  belonging  to  the  mortgagor,  or 
butter  to  be  thereafter  produced  from  his  cows,  or  a  crop  arising  from 
seed  already  sown,  the  mortgage  would  be  valid.  The  general  rule  un- 
doubtedly is  that  a  person  cannot  convey  a  thing  not  in  esse,  or  in 
which  he  has  no  present  interest.  But  it  is  quite  as  well  settled,  that 
if  the  thing  has  a  potential  existence  it  may  be  mortgaged  or  hypoth- 
ecated. "If  one,  being  a  person,  give  to  another  all  the  wool  he 
shall  have  for  tithes  the  next  year,  this  is  a  good  grant,  although  none 
may  arise,  for  the  tithes  are  potentially  in  the  person.  *  *  *  So 
one  may  grant  all  the  wool  of  his  sheep  for  seven  years ;  but  not  of 
the  sheep  which  he  shall  thereafter  purchase."  Van  Hoozer  v.  Cory, 
34  Barb.  (N.  Y.)  12,  and  authorities  there  cited.    "Land  is  the  mother 


ll 


8  SUBJECT-MATTER  OP    THE    CONTRACT  v^Ch.  1 

and  root  of  all  fruits.  Wherefore  he  that  hath  it  may  grant  all  fruits 
that  may  arise  upon  it  after,  and  the  property  shall  pass  as  soon  as 
the  fruits  are  extant."  Grantham  v.  Hawley,  Hob.  R.  132.  In  Van 
Hoozer  v.  Cory,  supra,  the  court  holds  that  "the  same  principle  is 
adjudged  applicable  to  the  annual  crops,  the  fruit  of  the  annual  la- 
bor of  the  lessee,  as  if  a  lessor  covenants  that  it  shall  be  lawful  for 
the  lessee,  at  the  expiration  of  the  lease,  to  carry  away  the  corn  grow- 
ing on  the  premises,  although  by  possibility  there  may  be  no  corn 
growing  at  the  expiration  of  the  lease,  yet  the  grant  is  good,  for  the 
grantor  had  such  a  power  in  him,  and  the  property  shall  pass  as  soon 
as  the  corn  is  extant."  So  there  may  be  a  valid  grant  of  the  grain 
that  a  field  is  expected  to  grow.  1  Parsons  on  Cont.  523 ;  McCarty 
V.  Blevins,  5  Yerg.  (Tenn.)  195,  26  Am.  Dec.  262.  In  Van  Hoozer 
V.  Cory,  supra,  the  grant  was  of  the  cheese  expected  to  be  made  from 
the  cows  of  the  grantor,  and  "the  products  expected  to  be  raised  upon 
the  premises  then  demised  to  the  grantor";  and  this  was  held  to  be 
a  valid  grant. ^  In  that  case  the  question  involved  here  was  carefully 
considered  by  the  court  upon  a  full  examination  of  the  authorities,  and 
we  are  satisfied  with  the  conclusion  to  which  it  arrived.  But  the  same 
question  arose  in  the  later  case  of  Conderman  v.  Smith,  41  Barb. 
(N.  Y.)  404,  in  which  the  ruling  in  Van  Hoozer  v.  Cory  was  approved ; 
and  Johnson,  J.,  in  delivering  the  opinion  of  the  court,  said :  "That 
case  (Van  Hoozer  v.  Cory)  like  this,  was  an  action  by  the  lessor  and 
purchaser,  against  a  creditor  of  the  lessee,  who  had  taken  and  sold 
the  products  of  the  farm  and  dairy  upon  execution;  and  the  court 
held  that  it  did  not  fall  within  the  rule  which  prohibits  the  selling 
or  mortgaging  of  property  not  in  existence,  or  not  owned  by  the 
vendor  or  mortgagor.  It  was  the  product  of  property  which  the  ven- 
dor owned  at  the  time,  and  was,  as  it  is  expressed  in  the  books,  po- 
tentially his,  and,  therefore,  the  subject  of  sale."  On  the  rule  estab- 
lished in  these  cases,  the  crop  mortgaged  to  the  plaintiffs  had  a  poten- 
tial existence,  and  the  mortgage  was  valid. 

Judgment  and  order  affirmed.^ 

Mr,  Chief  Justice  Wali^ace  and  Mr.  Justice  McKinstry  dissented. 

2  In  holding  that  the  doctrine  of  potential  possession  applies  to  a  manu' 
factured  product,  such  as  cheese,  this  decision,  says  Williston,  "stands  alone, 
*     *     *     and  must  be  regarded  as  questionable."     Sales,   §  134  note.     Com- 

.  pare  Langton  v.  Higgins,  2S  L.  J.  Ex.  252  (1S59),  reported  herein,  post,  p.  105. 

3  In  Shaw  v.  Gilmore,  SI  Me.  396,  17  Atl.  314  (1SS9),  the  court  said:  "The 
sale,  however,  can  only  operate  upon  a  sj^ecific  thing,  as  tlie  grass  of  a  par- 
ticular tield  during  a  specified  time  that  the  grantor  owned  the  right  to  cut 
and  gather  it  in.  *  *  *  In  the  present  case,  the  grant  purports  to  be  of 
the  yearly  crop  of  hay  for  an  indefinite  period  of  time.  The  controversy  is 
over  the  fifth  crop,  sold  by  the  assignor,  who  was  in  possession  of  the  same, 
to  a  bona  fide  purchaser.  Under  the  rules  of  the  common  law,  the  convey- 
ance must  be  held  inoperative  as  to  the  hay  in  dispute  and,  therefore,  the 
plaintiff's  title  to  the  same  fails." 

In  some  states  the  statute  prohibits  mortgages  made  more  than  a  speci- 
fied time  before  the  planting  of  the  crop.     See  Williston,  Sales,  §  135. 


Ch.  1)  SUBJECT-MATTER  OF    THE    CONTRACT  9 

WELTER  V.  HILL. 

(Supreme  Court  of  Mnnesota,  1896.     65  Minn.  273,  68  N.  W.  26.) 

Canty,  J.*  During  all  the  time  hereinafter  stated  one  Bodkin 
was  the  owner  of  a  certain  farm  in  Clay  county,  in  this  state,  on  which 
he  carried  on  the  business  of  farming.  On  March  15,  1894,  the  Eco- 
nomist Plow  Company  recovered  judgment  against  him  for  the  sum 
of  $2,102.26  in  the  district  court  of  that  county,  and  on  August  2d 
of  the  same  year  caused  execution  to  be  issued  thereon  and  levied  on 
about  100  acres  of  growing  flax  which  was  being  raised  by  Bodkin  on 
this  farm.  This  action  was  brought  by  plaintiff,  claiming  to  be  the 
owner  of  the  flax,  against  the  sheriff,  for  the  conversion  of  the  same. 
Plaintiff  had  a  verdict.  Defendant's  motion  for  a  new  trial  was  de- 
nied, and  he  appeals  from  the  judgment  thereafter  entered. 

It  is  assigned  as  error  that  the  verdict  is  not  sustained  by  the  evi- 
dence, and,  in  our  opinion,  the  assignment  is  well  taken.  Plaintiff 
claims  to  have  purchased  the  field  of  flax  from  Bodkin  in  the  spring, 
before  the  seed  was  sown,  and  to  have  received  a  bill  of  sale  of  the 
same.  No  bill  of  sale  was  produced  on  the  trial,  and  there  never  was 
any  apparent  change  of  possession,  but  Bodkin  sowed  the  flax,  ap- 
parently as  his  own.  However,  no  question  seems  to  have  been  raised, 
and  no  issue  tried,  as  to  whether  there  was  any  actual  fraud  in  the  al- 
leged sale,  or  any  constructive  fraud,  except  as  it  is  claimed  by  ap- 
pellant that  the  evidence  is  conclusive  that  the  transaction,  if  there 
was  any,  was  a  chattel  mortgage,  and  not  an  absolute  sale;  and  that 
it  is  void  as  against  creditors  because  never  filed  with  the  town  clerk 
as  required  by  Gen.  St.  1894,  §§  4129,  4130.  On  this  question  we  will 
not  pass,  as  we  are  of  the  opinion  that  the  next  question  disposes  of 
the  case. 

Appellant  contends  that,  conceding  the  contract  to  be  in  the  nature 
of  a  sale,  and  not  of  a  mortgage,  still  the  evidence  does  not  warrant  a 
finding  that  it  was  anything  more  than  an  executory  contract  of  sale 
under  which  the  title  to  the  property  had  not  passed  from  Bodkin  to 
plaintiff  at  the  time  of  the  levy.  In  our  opinion,  the  point  is  well 
taken.     *     *     * 

Plaintiff  does  not  claim  that  he  rented  the  ground  from  Bodkin. 
He  claims  that  he  bought  the  crop.  When  did  the  title  to  the  prop- 
erty pass?  It  did  not  pass  when  the  bill  of  sale  was  made,  because 
it  was  not  then  in  existence.  There  was  nothing  then  in  existence  but 
the  seed,  which  was  not  yet  sown.  Plaintiff  does  not  claim  that  he 
bought  that,  and,  even  if  he  had,  it  would  not  entitle  him  to  follow 
that  seed  into  the  crop,  and  claim  the  whole  crop.  Calling  the  trans- 
action a  sale  and  the  instrument  a  bill  of  sale  did  not  make  the  con- 
tract an  executed  one,  when  the  facts  show  that  it  was  not.  If  the 
title  did  not  pass  when  the  bill  of  sale  was  made,  when  did  it  pass? 

4  Part  of  the  opinion  is  omitted. 


10  SUBJECT-MATTER   OF    THE    CONTRACT  (Cll.  1 

We  see  nothing'  in  the  case  which  warrants  a  holding  that  it  passed, 
or  would  pass,  before  the  crop  was  threshed  and  ready  for  delivery. 
The  levy  was  made  prior  to  that.  If  the  verdict  in  this  case  could  be 
sustained,  it  would  illustrate  the  beautiful  uncertainty  that  in  many 
cases  would  exist  as  to  which  of  two  parties  is  the  owner  of  the  per- 
sonal property  in  question.  There  ought  to  be  at  least  some  general 
principles  of  law  more  definite  and  certain  than  the  uncertain  guess 
of  the  jury  in  each  case.  That  guess  ought  to  be  confined  to  a 
much  narrower  range  than  it  would  be  if  this  verdict  could  be  sus- 
tained. 

The  judgment  is  reversed,  and  a  new  trial  granted. 


HULL  V.  HULL. 

(Supreme  Court  of  Errors  of  Connecticut,  ISSO.     48  Conn.  250, 
40  Am.  Rep.  165.) 

LooMis,  J.^  The  controversy  in  this  case  has  reference  to  the 
ownership  of  six  colts,  the  progeny  of  two  brood  mares,  which  the 
plaintift',  some  ten  years  prior  to  this  suit,  purchased  in  Boston  of  the 
Rev.  William  H.  H.  Murray.  The  contract  of  sale  provided  that  the 
plaintifl:  might  take  the  mares  to  Murray's  farm,  in  this  state,  of 
which  she  was  and  had  been  for  several  years  the  superintendent,  and 
there  keep  them  as  breeding  mares ;  and  all  the  colts  thereafter  foaled 
from  them,  though  sired  by  Murray's  stallions,  were  to  be  the  ex- 
clusive property  of  the  plaintiff. 

No  attempt  has  been  made  by  Murray's  creditors  or  his  trustee  to 
deprive  the  plaintitt  of  the  mares  so  purchased,  and  they  are  now  in 
her  undisturbed  possession ;  but  the  colts,  while  on  Murray's  farm,  on 
the  1st  of  August,  1879,  were  attached  by  one  of  his  creditors,  who 
subsequently  released  the  property  to  the  defendant  as  trustee  in  in- 
solvency, who  had  the  property  in  his  possession  at  the  time  the  plain- 
tift* brought  her  writ  of  replevin. 

The  sole  ground  upon  which  the  defendant  claims  to  hold  these  colts 
is  that  there  was  such  a  retention  of  possession  by  Murray  after  the 
sale  as  to  render  the  transaction  constructively  fraudulent  as  against 
creditors. 

The  court  below  overruled  this  claim,  and  in  so  doing  we  think  com- 
mitted no  error. 

The  doctrine  as  to  retention  of  possession  after  a  sale  has  no  appli- 
cation to  the  facts  of  this  case.  A  vendor  cannot  retain  after  a  sale 
what  does  not  then  exist,  nor  that  which  is  already  in  the  possession 
of  the  vendee.  This  proposition  would  seem  to  be  self-sustaining. 
If,  however,  it  needs  confirmation,  the  authorities  in  this  state  and 
elsewhere  abundantly  supply  it.     Lucas  v.  Birdsey,  41   Conn.   357; 

6  The  statement  of  facts  is  omitted. 


Ch.  1)  SUBJECT-MATTER   OF    THE    CONTRACT  11 

Capron  v.  Porter,  43  Conn.  389;  Spring  v.  Chipman,  6  Vt.  662.  In 
Bellows  V.  Wells,  36  Vt.  599,  it  was  held  that  a  lessee  might  convey 
to  his  lessor  all  the  crops  which  might  be  grown  on  the  leased  land 
during  the  term,  and  no  delivery  of  the  crops  after  they  were  har- 
vested was  necessary  even  as  against  attaching  creditors,  and  that  the 
doctrine  as  to  retention  of  possession  after  the  sale  did  not  apply  to 
property  which  at  the  time  of  the  sale  was  not  subject  to  attachment 
and  had  no  real  existence  as  property  at  all. 

The  case  at  bar  is  within  the  principle  of  the  above  authorities, 
for  it  is  very  clear  that  the  title  to  the  property  in  question  when  it 
first  came  into  existence  was  in  the  plaintiff. 

In  reaching  this  conclusion  it  is  not  necessary  to  hold  that  the  mares 
became  the  absolute  property  of  the  plaintiff  under  Massachusetts 
law  without  a  more  substantial  and  visible  change  of  possession,  or 
that  under  our  law,  the  title  to  the  mares  being  in  the  plaintiff'  clearly 
as  between  the  parties,  the  rule  imported  from  the  civil  law,  partus 
sequitur  ventrem,  applies.  We  waive  the  consideration  of  these  ques- 
tions. It  will  suffice  that,  by  the  express  terms  of  the  contract,  the 
plaintiff  was  to  have  as  her  own  all  the  colts  that  might  be  born  from 
these  mares.     That  the  law  will  sanction  such  a  contract  is  very  clear. 

It  is  true,  as  remarked  in  Perkins,  Conv.  tit.  "Grant,"  §  65,  that  "it 
is  a  common  learning  in  the  law  that  a  man  cannot  grant  or  charge 
that  which  he  has  not" ;  yet  it  is  equally  well  settled  that  a  future  pos- 
sibility arising  out  of,  or  dependent  upon,  some  present  right,  prop- 
erty or  interest,  may  be  the  subject  of  a  valid  present  sale. 

The  distinction  is  illustrated  in  Hobart,  132,  as  follows :  "The  grant 
of  all  the  tithe  wool  of  a  certain  year  is  good  in  its  creation,  though 
it  may  happen  that  there  be  no  tithe  wool  in  that  year ;  but  the  grant 
of  the  wool  which  shall  grow  upon  such  sheep  as  the  grantor  may 
afterwards  purchase,  is  void." 

It  is  well  settled  that  a  valid  sale  may  be  made  of  the  wine  a  vine- 
yard is  expected  to  produce,  the  grain  that  a  field  is  expected  to  grow, 
the  milk  that  a  cow  may  yield,  or  the  future  young  born  of  an  animal. 
1  Pars.  Cont.  (5th  Ed.)  p.  523,  note  k,  and  cases  there  cited ;  Hill.  Sales, 
§  18;  Story,  Sales,  §  186.  In  Fonville  v.  Casey,  5  N.  C.  389,  4  Am. 
Dec.  559,  it  was  held  that  an  agreement  for  a  valuable  consideration 
to  deliver  to  the  plaintiff  the  first  female  colt  which  a  certain  mare 
owned  by  the  defendant  might  produce,  vests  a  property  in  the  colt 
in  the  plaintiff,  upon  the  principle  that  there  may  be  a  valid  sale  where 
the  title  is  not  actually  in  the  grantor,  if  it  is  in  him  potentially,  as 
being  a  thing  accessory  to  something  which  he  actually  has.  And  in 
McCarty  v.  Blevins,  5  Yerg.  (Tenn.)  195,  26  Am.  Dec.  262,  it  was 
held  that  vv^here  A.  agrees  with  B.  that  the  foal  of  A.'s  mare  shall  be- 
long to  C,  a  good  title  vests  in  the  latter  when  parturition  from  the 
mother  takes  place,  though  A.  immediately  after  the  colt  was  born  sold 
and  delivered  it  to  D. 


12  SUBJECT-MATTER  OP   THE    CONTRACT  (Ch.  1 

Before  resting  the  discussion  as  to  the  plaintiff's  title,  we  ought 
perhaps  briefly  to  allude  to  a  claim  made  by  the  defendant,  both  in 
the  court  below  and  in  this  court,  to  the  effect  that  if  the  plaintiff's 
title  be  conceded  she  is  estopped  from  asserting  her  claim.  This  doc- 
trine of  estoppel,  as  all  triers  must  have  observed,  is  often  strangely 
misapplied.  And  it  is  surely  so  in  this  instance.  The  case  fails  to 
show  any  act  or  omission  on  the  part  of  the  plaintiff  inconsistent  witH 
the  claims  she  now  makes,  or  that  the  creditors  of  Murray  or  the  de- 
fendant as  representing  them  were  ever  misled  to  their  injury  by  any 
act  or  negligence  on  her  part.  On  the  contrary  the  estoppel  is  as- 
serted in  the  face  of  the  explicit  finding,  that  "as  soon  as  the  plaintiff 
became  aware  of  the  attachment  of  her  horses  she  forbade  the  officer 
taking  the  same,  and  demanded  their  immediate  return  to  her." 

The  only  fact  which  is  suggested  as  furnishing  the  basis  for  the 
alleged  estoppel  is  that  from  the  1st  of  August.  1879,  to  the  12th  of 
January  next  following,  "no  attempt  was  made  by  the  plaintiff'  to  main- 
tain her  title  by  suit,  although  she  was  living  during  the  time  at  Guil- 
ford, where  said  colts  were."  But  who  ever  heard  of  an  estoppel  in 
an  action  at  law  predicated  solely  on  neglect  to  bring  a  suit  for  the 
period  of  five  months?  To  recognize  such  a  thing  for  any  period  short 
of  the  statute  of  limitations  would  practically  modify  the  statute  and 
create  a  new  limitation.  Furthermore,  in  what  respect  have  the  de- 
fendant and  those  he  represents  been  misled  to  their  injury  by  this 
fact?  The  plaintiff  never  induced  the  taking  or  withholding  of  her 
property.  And  can  a  tort  feasor  or  the  wrongful  possessor  of  an- 
other's property  object  to  the  delay  in  suing  him  for  his  wrong,  and 
claim,  as  in  this  case,  an  estoppel  on  the  ground  that  his  wrongful 
possession  proved  a  very  expensive  one  to  him.  amounting  even  to 
more  than  the  value  of  the  property?  He  might  have  stopped  the  ex- 
pense at  any  time  by  simply  giving  to  the  plaintiff'  what  belonged  to  her. 

The  single  question  of  evidence  which  the  record  presents  we  do 
not  deem  it  necessary  particularly  to  discuss.  It  will  suffice  to  remark 
that  if  the  defendant's  testimony  was  admissible  to  show  that  jMurray, 
after  the  sale  to  the  plaintiff'  (and,  so  far  as  appears,  in  her  absence),, 
claimed  to  own  the  mares  and  colts,  it  was  a  complete  and  satisfactory 
reply  for  the  plaintiff  in  rebuttal  to  show  that  Murray's  own  entries 
(presumably  a  part  of  the  res  gestae)  in  the  appropriate  books  kept  by 
him,  showed  the  fact  to  be  otherwise,  and  in  accordance  with  the  plain- 
tift''s  claims. 

At  any  rate  it  is  very  clear  that  no  injustice  was  done  by  this  ruling 
to  furnish  any  ground  for  a  new  trial. 

There  was  no  error  in  the  judgment  complained  of,  and  a  new  trial 
is  not  advised.    In  this  opinion  the  other  Judges  concurred. 


Ch.  1)  SUBJECT-MATTER  OF    THE    CONTRACT  13 

BATES  V.   SMITH. 

(Supreme  Court  of  Michigan,  1890.     83  Mich,  347,  47  N.  W.  249.) 

Long,  J.  This  is  an  action  of  trover  to  recover  the  value  of  one- 
half  interest  in  a  colt.  The  claim  of  the  plaintiff  is  that  he  bred  the 
mare  of  one  James  Fraser  upon  shares.  The  contract  as  stated  by  the 
plaintiff  is  that  Fraser  came  to  his  farm,  and  said  he  wanted  to  breed 
his  mare  to  the  stallion  American  Boy,  then  kept  by  plaintiff,  and  that 
he  had  no  money;  that  plaintiff  then  told  him  he  would  breed  the 
mare  on  shares,  and,  if  Mr.  Fraser  would  come  to  him  at  any  time 
within  two  weeks  and  give  him  $50  for  the  services  of  the  horse, 
Fraser  could  have  his  (the  plaintiff's)  half-interest  in  the  colt ;  that 
the  mare  was  then  and  there  bred  under  that  arrangement,  but  no 
written  contract  was  made.  James  Fraser  was  called  as  a  witness 
for  the  defendant  upon  the  trial,  and  testified :  "My  bargain  with 
plaintiff  that,  if  I  did  not  pay  plaintiff  fifty  dollars  within  three  months, 
for  the  service  of  the  stallion,  he  (plaintiff,)  was  to  own  a  half-interest 
in  the  colt."  On  cross-examination  he  states  the  arrangement  sub- 
stantially as  claimed  by  plaintiff,  except  that  he  was  to  have  three 
months  in  which  to  pay  the  money.  It  appears  that  the  mare  was 
bred  July  27,  1888,  and  that  the  defendant  purchased  her  from  Fraser 
on  February  21,  1889,  paying  therefor  the  sum  of  $300. 

Defendant  upon  the  trial  stated  that  at  the  time  he  purchased  the 
mare  he  had  no  knowledge  that  the  plaintifif  made  any  claim  to  her 
progeny,  and  that  plaintiff  never  made  any  claim  until  the  colt  was 
four  or  five  months  old.  It  appeared,  however,  that  before  defend- 
ant bought  the  mare  he  was  informed  that  Fraser  had  bred  to  the 
stallion  American  Boy  then  kept  by  plaintiff,  but  was  not  advised  that 
any  contract  was  made  by  which  the  plaintiff  was  to  have  a  half-in- 
terest in  the  colt.  Demand  was  made  before  suit  was  brought,  and 
the  defendant  refused  to  recognize  the  plaintiff's  interest.  ■  Under 
these  facts,  the  plaintiff's  counsel  requested  the  court  to  instruct  the 
jury  that  Fraser  could  not  sell  the  interest  of  plaintiff  in  the  colt,  and 
that  the  colt  when  foaled  was  the  property  in  common  of  the  plaintiff 
and  defendant,  and  that  the  value  of  the  one-half  interest  could  be 
recovered  in  this  action.  This  the  court  refused,  and  instructed  the 
jury,  that  if  at  the  time  the  defendant  purchased  the  mare  from  Fraser 
he  had  no  knowledge  of  the  arrangement  made  between  plaintiff  and 
Fraser,  the  title  to  the  colt  would  pass  to  the  defendant,  but  that  if 
he  did  have  knowledge  of  it,  the  title  would  not  pass.  The  jury  found 
a  verdict  in  favor  of  defendant.     Plaintiff  brings  error. 

It  is  contended  by  plaintiff's  counsel  that  the  defendant  was  not  in 
any  sense  a  bona  fide  purchaser  of  the  colt,  but  that,  if  he  were,  he 
could  acquire  from  Fraser  only  his  half-interest  therein.  It  is  a  gen- 
eral rule  that  owners  in  common  of  property  have  a  right  to  dispose 
of  their  own  undivided  shares,  but  such  owner  cannot  sell  the  whole 


14  SUBJECT-MATTER   OF    THE    CONTRACT  (Ch.  1 

property,  nor  any  portion  thereof  except  his  own ;  and,  if  he  under- 
takes to  dispose  of  any  larger  interest  his  co-owners  are  not  bound 
thereby.  Russell  v.  Allen,  13  N.  Y.  173.  The  principle  is  well  set- 
tled that  a  seller  of  personal  property  can  convey  no  greater  title  than 
he  has,  and  it  makes  no  difference  that  the  purchaser  has  no  notice 
and  is  ignorant  of  the  existence  of  the  other  parties  in  interest.  Couse 
V.  Tregent,  11  Mich.  65;  Dunlap  v.  Gleason,  16  Mich.  158,  93  Am. 
Dec.  231;  Tuttle  v.  Campbell,  74  Mich.  660,  42  N.  W.  384,  16  Am. 
St.  Rep.  652. 

Did  the  contract,  however,  which  plaintiff  claims  he  made  with  Era- 
ser convey  to  him  one  half-interest?  The  property  upon  which  the 
contract  was  to  operate  had  no  potential  existence.  The  mare  at  that 
time  had  not  been  bred,  and  it  was  uncertain  that,  when  bred,  she 
would  be  put  in  foal.  There  was  nothing  in  existence  which  could  be 
the  subject  of  sale.  It  is  essential  to  the  validity  of  every  executed 
contract  of  sale  that  there  should  be  a  thing  or  subject-matter  to  be 
contracted  for.  And  if  it  appears  that  the  subject-matter  of  the  con- 
tract was  not,  and  could  not  have  been,  in  existence  at  the  time  of 
such  contract,  the  contract  itself  is  of  no  effect,  and  may  be  disre- 
garded by  either  party.  Strickland  v.  Turner,  7  Exch.  208;  Hastie 
v.  Couturier,  9  Exch.  102,  5  H.  L.  Cas.  673 ;  Franklin  v.  Long,  7  Gill 
&  J.  (Md.)  407.  A  mere  possibility  or  contingency,  not  founded  upon 
a  right,  or  coupled  with  an  interest,  cannot  be  the  subject  of  a  present 
sale,  though  it  may  be  of  an  executory  agreement  to  sell.  Purcell  v. 
Mather,  35  Ala.  570,  76  Am.  Dec.  307 ;  Low  v.  Pew,  108  Mass.  347, 
11  Am.  Rep.  357.  Though  the  subject-matter  of  the  agreement  has 
neither  an  actual  nor  potential  existence,  such  an  agreement  is  usually 
denominated  an  executory  contract,  and  for  its  violation  the  remedy 
of  the  party  injured  is  by  an  action  to  recover  the  damages.  Hutchin- 
son V.  Eord,  9  Bush  (Ky.)  318,  15  Am.  Rep.  711;  Pierce  v.  Emery, 
32  N.  H.  484. 

Again,  it  may  be  said  that,  where  one  of  two  innocent  parties  must 
suffer  by  the  fraud  of  another,  he  shall  bear  the  loss  who  by  his  con- 
duct has  enabled  such  third  party  to  perpetrate  the  fraud.  If  the  con- 
tract was  made  as  claimed  by  the  plaintiff',  and  there  does  not  seem 
to  be  much  controversy  on  this  point,  yet,  the  plaintiff'  had  it  in  his 
power  to  protect  himself,  under  the  provisions  of  Act  No.  280,  Pub. 
Acts,  1887.  This  act  provides  that  the  owner  or  keeper  of  a  stallion 
shall,  after  demand  upon  the  owner  of  the  mare  for  the  price  agreed 
upon  for  service,  have  a  lien  upon  the  get  of  such  stallion  for  the 
period  of  six  months  after  the  birth  of  the  foal,  for  the  payment  of 
fhe  services  of  such  stallion.  In  order,  however,  to  perfect  such  lien, 
fie  must  file  with  the  township  clerk  in  the  town  where  such  dam  is 
owned  the  agreement  or  a  true  copy  of  such  agreement  entered  into 
by  the  owner  of  the  dam  for  such  services,  together  with  the  descrip- 
tion of  such  dam  as  to  age,  color,  or  other  marks  as  the  person  filing 


Ch.  1)  SUBJECT-MATTER   OF    THE    CONTRACT  15 

such  agreement  is  able  to  give.  This  filing  is  to  operate,  under  the 
provisions  of  this  act,  as  a  chattel  mortgage,  and  may  be  enforced  in 
the  same  way.  No  such  steps  were  taken.  The  mare  remained  in 
the  possession  of  the  owner,  Mr.  Fraser,  from  the  time  she  was  bred 
until  in  February  following,  when  the  defendant  purchased  her  with- 
out any  notice,  so  far  as  this  record  discloses,  of  the  agreement  made 
between  plaintiflf  and  Fraser. 

It  is  shown  that  defendant  was  advised  at  the  time  he  purchased 
that  the  mare  had  been  bred  to  American  Boy,  but  no  notice  was 
given  him  that  plaintiff  had  any  claim  on  the  foal,  and  there  was  noth- 
ing upon  the  record  in  the  town-clerk's  office  to  give  him  any  notice 
that  plaintiff  claimed  a  lien  upon  or  had  any  interest  in  the  foal.  It 
cannot  be  said  that  the  mere  fact  of  notice  of  the  breeding  of  the  mare 
to  American  Boy  was  sufficient  to  put  him  upon  inquiry  as  to  any 
rights  the  owner  of  the  stallion  might  have.  The  defendant  must  be 
regarded  as  a  bona  fide  purchaser  and  owner  of  the  mare ;  and,  the 
title  and  ownership  of  the  foal  following  the  dam,  he  was  the  rightful 
owner  of  the  foal. 

We  see  no  error  in  the  case,  and  the  judgment  must  be  affirmed,  with 
costs.    The  other  justices  concurred. 


LOW  et  al.  v.  PEW  et  al. 

(Supreme    Judicial    Court   of    Massachusetts,    1871.     108    Mass.   347,    11    Am. 

Kep.  357.) 

Replevin  by  the  firm  of  Alfred  Low  &  Co.  of  a  lot  of  flitched  halibut 
from  the  assignees  in  bankruptcy  of  the  firm  of  John  Low  &  Son,  all 
of  Gloucester.  Writ  dated  August  24,  1869.  The  parties  stated  the 
following  case  for  the  judgment  of  the  court: 

On  April  17,  1869,  as  the  schooner  Florence  Reed,  owned  by  John 
Low  &  Son,  was  about  to  sail  from  Gloucester  on  a  fishing  voyage, 
that  firm  received  $1,500  from  the  plaintiffs,  and  signed  and  gave 
the  plaintiffs  the  following  writing : 

"We,  John  Low  &  Son,  hereby  sell,  assign,  and  set  over  unto  Alfred 
Low  &  Company  all  the  halibut  that  may  be  caught  by  the  master 
and  crew  of  the  schooner  Florence  Reed  on  the  voyage  upon  which 
she  is  about  to  proceed  from  the  port  of  Gloucester  to  the  Grand 
Banks,  at  the  rate  of  five  cents  and  a  quarter  per  pound  for  flitched 
halibut,  to  be  delivered  to  said  Alfred  Low  &  Company  as  soon  as 
said  schooner  arrives  at  said  port  of  Gloucester,  at  their  wharf.  And 
we,  the  said  John  Low  &  Son,  hereby  acknowledge  the  receipt  of  $1,- 
500  in  part  payment  for  the  halibut  that  may  be  caught  by  the  master 
and  crew  of  said  schooner  on  said  voyage." 

In  July,  1869,  proceedings  in  bankruptcy  were  begun  against  John  '^ 
Low  &  Son  in  the  district  court  of  the  United  States  for  this  district,  I 
in  which  they  were  adjudged  bankrupts  on  August  6th,  and  on  Au- 


16  SUBJECT-MATTER  OF    THE    CONTRACT  (Ch.  1. 

gust  20th  these  defendants  were  appointed  the  assignees  in  bankruptcy, 
and  the  deed  of  assignment  was  executed  to  them.  On  Saturday, 
August  14th,  the  Florence  Reed  arrived  at  the  port  of  Gloucester  on 
her  home  voyage,  and  was  hauled  to  the  plaintiffs'  wharf ;  and  on  the 
morning  of  Monday,  August  16,  the  United  States  marshal  took  pos- 
session of  the  vessel  and  cargo  under  a  warrant  issued  to  him  on  Au- 
gust 6th  in  the  proceedings  in  bankruptcy,  and  transferred  his  pos- 
session to  the  defendants  upon  their  appointment. 

The  catch  of  the  schooner  consisted  of  about  40,000  pounds  of  hali- 
but, and  of  some  codfish.  The  plaintiff's  demanded  the  halibut  of  the 
defendants,  and  off"er'ed  at  the  same  time  to  pay  the  price  of  it  at  the 
rate  of  five  and  a  quarter  cents  per  pound,  less  the  $1,500  already  paid. 
The  defendants  refused  the  demand;  and  the  plaintiffs  then  replevied 
such  a  quantity  of  the  halibut  as  represented  the  amount  of  $1,500  at 
that  rate  per  pound,  and  off"ered  to  receive  the  rest  of  the  halibut  and 
pay  for  it  at  the  same  rate,  but  the  defendants  refused  to  acknowledge 
any  right  whatever  of  the  plaintiffs  in  or  to  the  fish. 

If  on  these  facts  the  plaintiffs  were  entitled  to  recover,  they  were 
to  have  judgment  for  nominal  damages ;  but,  if  otherwise,  the  defend- 
ants were  to  have  judgment  for  a  return,  with  damages  equal  to  in- 
terest at  the  annual  rate  of  six  per  cent,  on  the  appraised  value  of  the 
fish  replevied. 

Morton,  J.  By  the  decree  adjudging  John  Low  &  Son  bankrupts, 
all  their  property,  except  such  as  is  exempted  by  the  bankrupt  law, 
was  brought  within  the  custody  of  the  law,  and  by  the  subsequent  as- 
signment passed  to  their  assignees.  Williams  v.  Merritt,  103  Mass. 
184,  4  Am.  Rep.  521,  The  fii^m  could  not,  by  a  subsequent  sale  and 
delivery,  transfer  any  of  such  property  to  the  plaintiffs.  The  schooner 
which  contained  the  halibut  in  suit  arrived  in  Gloucester  August  14, 
1869,  which  was  after  the  decree  of  bankruptcy.  If  there  had  been 
then  a  sale  and  delivery  to  the  plaintiff's  of  the  property  replevied,  it 
would  have  been  invalid.  The  plaintiffs  therefore  show  no  title  to 
the  halibut  replevied,  unless  the  eft'ect  of  the  contract  of  April  17, 
1869,  was  to  vest  in  them  the  property  in  the  halibut  before  the  bank- 
ruptcy. It  seems  to  us  clear,  as  claimed  by  both  parties,  that  this  was 
a  contract  of  sale,  and  not  a  mere  executory  agreement  to  sell  at  some 
future  day.  The  plaintiff's  cannot  maintain  their  suit  upon  any  othef 
construction,  because,  if  it  is  an  executory  agreement  to  sell,  the  prop- 
erty in  the  halibut  remained  in  the  bankrupts,  and,  there  being  no  de- 
livery before  the  bankruptcy,  passed  to  the  assignees.  The  question 
in  the  case  therefore  is  whether  a  sale  of  halibut  afterwards  to  be 
caught  is  valid,  so  as  to  pass  to  the  purchaser  the  property  in  them 
when  caught. 

I  It  is  an  elementary  principle  of  the  law  of  sales  that  a  man  cannot 
grant  personal  property  in  which  he  has  no  interest  or  title.  To  be 
able  to  sell  property,  he  must  have  a  vested  right  in  it  at  the  time  of 
the  sale.     Thus  it  has  been  held  that  a  mortgage  of  goods  which  the 


Ch.  1)  SUBJECT-MATTER   OP    THE    CONTRACT  17 

mortgagor  does  not  own  at  the  time  the  mortgage  is  made,  though  he 
afterwards  acquires  them,  is  void.  Jones  v.  Richardson,  10  Mete.  481. 
The  same  principle  is  applicable  to  all  sales  of  personal  property. 
Rice  V.  Stone,  1  Allen,  566,  and  cases  cited;  Head  v.  Goodwin,  37 
Me.  181. 

It  is  equally  well  settled  that  it  is  sufficient  if  the  seller  has  a  poten- 
tial interest  in  the  thing  sold.  But  a  mere  possibility  or  expectancy  of 
acquiring  property,  not  coupled  with  any  interest,  does  not  constitute 
a  potential  interest  in  it,  within  the  meaning  of  this  rule.  The  seller 
must  have  a  present  interest  in  the  property  of  which  the  thing  sold 
is  the  product,  growth,  or  increase.  Having  such  interest,  the  right 
to  the  thing  sold,  when  it  shall  come  into  existence,  is  a  present  vested 
right,  and  the  sale  of  it  is  valid.  Thus  a  man  may  sell  the  wool  to 
grow  upon  his  own  sheep,  but  not  upon  the  sheep  of  another ;  or  the 
crops  to  grow  upon  his  own  land,  but  not  upon  land  in  which  he  has 
no  interest.  2  Kent,  Comm.  (10th  Ed.)  468  (641)  note  a;  Jones  v. 
Richardson,  10  Mete.  481 ;  Bellows  v.  Wells,  36  Vt.  599 ;  Van  Hoozer 
V.  Cory,  34  Barb.  (N.  Y.)  9;   Grantham  v.  Hawley,  Hob.  132. 

The  same  principles  have  been  applied  by  this  court  to  the  assign- 
ment of  future  wages  or  earnings.  In  Mulhall  v.  Quinn,  1  Grav.  105, 
61  Am.  Dec.  414,  an  assignment  of  future  wages,  there  being  no  con- 
tract of  service,  was  held  invalid.  In  Hartley  v.  Tapley,  2  Gray,  565, 
it  was  held  that,  if  a  person  is  under  a  contract  of  service,  he  may  as- 
sign his  future  earnings  growing  out  of  such  contract.  The  distinc- 
tion between  the  cases  is  that  in  the  former  the  future  earnings  are 
a  mere  possibility,  coupled  with  no  interest,  while  in  the  latter  the 
possibility  of  future  earnings  is  coupled  with  an  interest,  and  the  right 
to  them,  though  contingent,  and  liable  to  be  defeated,  is  a  vested  right. 

In  the  case  at  bar,  the  sellers,  at  the  time  of  the  sale,  had  no  interest 
in  the  thing  sold.  There  was  a  possibility  that  they  might  catch  halibiit ; 
but  it  was  a  mere  possibility  and  expectancy,  coupled  with  no  interest. 
We  are  of  opinion  that  they  had  no  actual  or  potential  possession  of 
or  interest  in  the  fish,  and  that  the  sale  to  the  plaintiffs  was  void. 

The  plaintiffs  rely  upon  Gardner  v.  Hoeg,  18  Pick.  168,  and  Tripp 
V.  Brownell,  12  Gush.  Z7(i.  In  both  of  these  cases  it  was  held  that  the 
lay  or  share  in  the  profits,  which  a  seaman  in  a  whaling  voyage  agreed 
to  receive  in  lieu  of  wages,  was  assignable.  The  assignment  in  each 
case  was,  not  of  any  part  of  the  oil  to  be  made,  but  of  the  debt  which, 
under  the  shipping  articles,  would  become  due  to  the  seaman  from  the 
ownei's  at  the  end  of  the  voyage.  The  court  treated  them  as  cases 
of  assignments  of  choses  in  action.  The  question  upon  which  the  case 
at  bar  turns  did  not  arise,  and  was  not  considered. 

Judgment  for  the  defendants.*^ 

c  As  to  the  equitable  rights  of  a  purcliaser  or  uiortgagee  of  future  goods, 
see  Williston,  Sales,  §§  13S-145 ;    also  an  article  by  the  same  author,  "Trans- 
fer of  After-Acquired  Personal  Propertj',"  19  Harv.  Law  Rev.  557. 
WooDw.  Sales — '1 


18  CONTRACT  TO  SELL  SPECIFIC  GOODS — EST  GENERAL  (Ch.  2 

CHAPTER  II 
TRANSFER  OF  PROPERTY  AND  TITLE 


SECTION   1.— UNCONDITIONAL  CONTRACT  TO   SELL 
SPECIFIC  GOODS— IN   GENER.\L 


/ 


WILLISTON  ON  SALES. 

§  260.  *  *  *  It  may  be  assumed  safely  that  when  the  law 
was  first  much  developed  in  England,  the  rule  of  the  Roman  law  re- 
quiring delivery  in  order  to  effect  a  transfer  of  the  property  was  ac- 
cepted.^ But  it  was  not  long  before  payment  of  the  price  was  also 
regarded  as  sufficient  to  effect  the  transfer  of  the  property.  Professor 
Ames  has  traced  this  development :  ^ 

"Detinue  would  also  lie  against  a  seller  upon  a  bargain  and  sale. 
Here  it  was  the  payment  of  the  purchase  money  that  as  a  rule  con- 
stituted the  quid  pro  quo  for  the  seller's  duty  to  suffer  the  buyer  to 
take  possession  of  the  chattel  sold.  If  the  bargain  was  for  the  recip- 
rocal exchange  of  chattels,  the  delivery  of  the  chattel  by  the  one  party 
would  be  as  effective  a  quid  pro  quo  as  payment  of  purchase  money 
to  support  an  action  of  detinue  against  the  other  party.  It  was  hardly 
an  extension  of  principle  to  treat  the  delivery  of  the  buyer's  sealed 
obligation  for  the  amount  of  the  purchase  money  as  equivalent  to  ac- 
tual payment  of  money,  or  delivery  of  a  chattel,  and  accordingly  we 
find  in  Y.  B.  21  Edw.  Ill,  12-2,  the  following  statement  by  Thorpe, 
Chief  Justice  of  Common  Bench  in  30  Edw.  Ill :  Tf  I  make  you  an 
obligation  for  £40.  for  certain  merchandise  bought  of  you,  and  you 
will  not  deliver  the  merchandise,  I  cannot  justify  the  detainer  of  the 
money;  but  you  shall  recover  by  a  writ  of  debt  against  me,  and  I 
shall  be  put  to  my  action  against  you  for  the  thing  bought  by  a  writ 
of  detinue  of  chattels.' 

"But  it  was  a  radical  departure  from  established  traditions  to  per- 
mit a  buyer  to  sue  in  detinue  when  there  was  merely  a  parol  bargain 
of  sale  without  the  delivery  of  a  physical  res  of  any  sort  to  the  seller. 
But  this  striking  change  had  been  accomplished  by  the  time  of  Henry 
VI.  The  new  doctrine  may  be  even  older,  but  there  seems  to.be  no 
earlier  expression  of  it  in  the  books  than  the  following  statement  by 
Fortescue,  C.  J. :  Tf  I  buy  a  horse  of  you,  the  property  is  straight- 
way in  me,  and  for  this  you  shall  have  a  writ  of  debt  for  the  money, 

1  See  an  article  by  Prof.  Richard  Brown.  15  Juridical  Review.  .391.  395. 
This  rule  has  persisted  in  regard  to  gifts  for  the  validity  of  which  delivery  is 
still  essential.     Cochrane  v.  Moore,  25  Q.  B.  D.   57. 

2  8  Ilarv.  Law  Rev.  252,  258. 


Sec.  1)         CONTKACT   TO    SELL   SPECIFIC    GOODS — IN    GENERAL 


19 


and  I  shall  have  detinue  for  the  horse  on  this  bargain.'  ^  From  the 
mutuality  of  the  obligations  growing  out  of  the  parol  bargain,  without 
more,  one  might  be  tempted  to  believe  that  the  English  law  had  de- 
veloped the  consensual  contract  more  than  a  century  before  the  earliest 
reported  cases  of  assumpsit  upon  mutual  promises.*  But  this  would  be 
a  misconception.  The  right  of  the  buyer  to  maintain  detinue,  and  the 
corresponding  right  of  the  seller  to  sue  in  debt,  were  not  conceived 
of  by  the  medieval  lawyers  as  arising  from  mutual  promises,  but  as 
resulting  from  reciprocal  grants — each  party's  grant  of  a  right  form- 
ing the  quid  pro  quo  for  the  corresponding  duty  of  the  other." 

The  law  of  so  remote  a  period,  however,  need  not  affect  a  discus- 
sion of  existing  law.  It  is  clear  that  before  the  seventeenth  century 
it  was  possible  for  the  seller  to  transfer  the  property,  not  only  without 
delivery,  but  without  payment  of  the  price  or  earnest  money.  This 
could  probably  only  be  done,  however,  if  credit  was  expressly  given 
by  the  seller.^ 


TARLING  V.  BAXTER. 
(Court  of  King's  Bench,  1827.     6  Barn.  &  C.  360.) 

Assumpsit  to  recover  back  £145  paid  by  the  plaintiff  to  the  defend- 
ant's use.  The  declaration  contained  counts  for  money  had  and  re- 
ceived, and  the  other  common  counts.  Plea,  general  issue,  with  a  no- 
tice of  set-off  for  goods  sold  and  delivered  and  bargained  and  sold. 
At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  Hilary 
term,  1826,  a  verdict  was  found  for  the  plaintiff  for  £145,  subject 
to  the  opinion  of  this  court  on  the  following  case. 

On  the  4th  of  January,  1825,  the  plaintiff  bought  of  the  defendant 
a  stack  of  hay  belonging  to  the  defendant,  and  then  standing  in  a  field 
belonging  to  the  defendant's  brother.  The  note  signed  by  the  defend- 
ant, and  delivered  to  the  plaintiff,  was  in  these  words :  'T  have  this 
day  agreed  to  sell  James  Tarling  a  stack  of  hay,  standing  in  Canon- 
bury  Field,  Islington,  at  the  sum  of  one  hundred  and  forty-live  pounds, 
the  same  to  be  paid  on  the  4th  day  of  February  next,  and  to  be  al- 
lowed to  stand  on  the  premises  until  the  first  day  of  May  next."  And 
the  following  note  was  signed  by  the  plaintiff,  and  delivered  to  the 
defendant.  "I  have  this  day  agreed  to  buy  of  Mr.  John  Baxter,  a 
stack  of  hay,  standing  in  Canonbury  Field,  Islington,  at  the  sum  of 
£145,  the  same  to  be  paid  on  the  4th  day  of  February  next,  and  to 

3  Y.  B.  20  Hen.  VI,  3.5-4 ;  T.  B.  21  Hen.  VI,  55-12.  See,  to  the  same  ef- 
fect, 37  Hen.  VI,  8-18,  per  Prisot,  C.  J. ;  Y.  B.  49  Hen.  VI,  18-23,  per  Choke, 
J.,  and  Brian,  J. ;  Y.  B.  17  Edw.  VI.  1-2.  See,  also,  Blaclvburn,  Contract  of 
Sale,  190-190. 

4  Pecke  V.  Redman,  Dy.  113  (1555),  appears  to  be  the  earliest  case  of 
mutual  promises. 

5  See  Noy's  Maxims,  c.  XLII  (1641).     See,  further,  infra,  §  341. 


f( 


20  CONTRACT   TO   SELL   SPECIFIC   GOODS — IN    GENERAL  (Ch.  2 

be  allowed  to  stand  on  the  premises  until  the  first  day  of  May  next, 
the  same  hay  not  to  be  cut  until  paid  for.     January  4th,  1825." 

At  the  meeting  at  which  the  notes  were  signed,  but  after  the  signa- 
ture thereof,  the  defendant  said  to  the  plaintiff,  "You  will  particu- 
larly oblige  me  by  giving  me  a  bill  for  the  amount  of  the  hay."  The 
plaintiff  rather  objected.  The  defendant's  brother,  S.  Baxter,  on  the 
8th  of  the  same  month  of  January,  took  a  bill  of  exchange  for  £145 
to  the  plaintiff',  drawn  upon  him  by  the  defendant,  dated  the  4th 
of  January  1825,  payable  one  month  after  date,  which  the  plaintiff 
accepted.  The  defendant  afterwards  indorsed  it  to  George  Baxter, 
and  the  plaintiff'  paid  it  to  one  Taylor,  the  holder,  when  it  became 
due.  The  stack  of  hay  remained  on  the  same  field  entire  until  the  20th 
of  January,  1825,  when  it  was  accidentally  wholly  consumed  by  fire, 
without  any  fault  or  neglect  of  either  party. 

A  few  days  after  the  fire,  the  plaintiff'  applied  to  the  defendant 
to  know  what  he  meant  to  do  when  the  bill  became  due ;  the  defend- 
ant said,  "I  have  paid  it  away,  and  you  must  take  it  up  to  be  sure: 
I  have  nothing  to  do  with  it,  why  did  you  not  remove  the  hay?"  The 
plaintiff'  said,  "he  could  not,  because  there  was  a  memorandum  'that 
it  should  not  be  removed  until  the  bill  was  paid;'  would  you  have 
suffered  it  to  be  removed?"  and  the  defendant  said,  "certainly  not." 
The  defendant's  set-off  was  for  the  price  of  the  hay  agreed  to  be  sold 
as  aforesaid.  The  question  for  the  opinion  of  the  court  was,  whether 
the  plaintiff  under  the  circumstances  was  entitled  to  recover  the  sum 
of  £145  or  any  part  thereof. 

BaylEy,  J.  It  is  quite  clear  that  the  loss  must  fall  upon  him  in 
whom  the  property  was  vested  at  the  time  when  it  was  destroyed  by 
fire.  And  the  question  is,  in  whom  the  property  in  this  hay  was 
vested  at  that  time?  By  the  note  of  the  contract  delivered  to  the 
plaintiff,  the  defendant  agreed  to  sell  the  plaintiff  a  stack  of  hay  stand- 
nig  in  Canonbury  Field  at  the  sum  of  £145,  the  same  to  be  paid  for 
on  the  4th  day  of  February  next,  and  to  be  allowed  to  stand  on  the 
premises  until  the  first  day  of  May  next.  Now  this  was  a  contract 
for  an  immediate,  not  a  prospective  sale.  Then  the  question  is,  in 
whom  did  the  property  vest  by  virtue  of  this  contract?  The  right  of 
property  and  the  right  of  possession  are  distinct  from  each  other; 
the  right  of  possession  may  be  in  one  person,  the  right  of  property 
in  another.  A  vendor  may  have  a  qualified  right  to  retain  the  goods 
unless  payment  is  duly  made,  and  yet  the  property  in  these  goods 
may  be  in  the  vendee. 

The  fact  in  this  case,  that  the  hay  was  not  to  be  paid  for  until 
a  future  period,  and  that  it  was  not  to  be  cut  until  it  was  paid  for, 
makes  no  difference,  provided  it  was  the  intention  of  the  parties  that 
the  vendee  should,  by  the  contract,  immediately  acquire  a  right  of 
property  in  the  goods,  and  the  vendor  a  right  of  property  in  the  price. 
The  rule  of  law  is,  that  where  there  is  an  immediate  sale,  and  nothing 


Sec.  2)        GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE   DONE  21 

remains  to  be  done  by  the  vendor  as  between  him  and  the  vendee,  the 
property  in  the  thing  sold  vests  in  the  vendee,  and  then  all  the  conse- 
quences resulting  from  the  vesting  of  the  property  follow,  one  of 
which  is,  that  if  it  be  destroyed,  the  loss  falls  upon  the  vendee.  The 
note  of  the  buyer  imports  also  an  immediate,  perfect,  absolute  agree- 
ment of  sale.  It  seems  to  me  that  the  true  construction  of  the  con- 
tract is,  that  the  parties  intended  an  immediate  sale,  and  if  that  be  so, 
the  property  vested  in  the  vendee,  and  the  loss  must  fall  upon  him. 
The  rule  for  entering  a  nonsuit,  must  therefore  be  made  absolute. 
Rule  absolute.® 


SECTION  2.— CONTRACT  TO  SELL  SPECIFIC  GOODS  TO 
WHICH  SOMETHING  REMAINS  TO  BE  DONE 


RUGG  V.  MINETT. 

(Court  of  King's  Bench,  1809.     11  East,  210.) 

In  an  action  for  money  had  and  received  by  the  defendants  to  the 
use  of  the  plaintiffs,  a  verdict  was  found  for  the  plaintiffs  for  £1415, 
subject  to  the  opinion  of  the  Court  upon  the  following  case. 

On  the  28th  of  April,  1808,  the  defendants,  as  prize  agents  to  the 
commissioners  for  the  care  and  disposal  of  Danish  property,  put  up 
to  public  sale  by  auction,  at  Dover,  the  cargo  of  a  Danish  ship  in  lots, 
and  the  lots  No.  28  to  54  inclusive  consisted  of  turpentine  in  casks. 
The  quantity  contained  in  each  lot  being  marked  on  the  catalogue 
thus — 10  cwt.  3  qrs.  26  lbs.,  the  mode  of  bidding  was  this :  Each  lot 
(except  the  two  last,  which  were  sold  at  uncertain  quantities)  was  to 
be  taken  at  the  weight  at  which  it  was  marked,  and  the  bidding  was  to 
be  at  so  much  per  hundred  weight  on  that  quantity.  The  plaintiffs 
employed  one  Acres,  the  warehouseman  of  the  defendants,  to  bid  for 
them,  and  all  the  lots  of  turpentine,  (with  the  exception  of  3  lots, 
which  were  sold  to  other  bidders,)  were  knocked  down  to  Acres  so 
acting  for  the  plaintiffs.  No  conditions  of  sale  were  distributed  prior 
to  the  sale ;  but  the  auctioneer,  before  the  bidding  commenced,  read 
aloud  the  folio  wings  conditions:  1st,  the  highest  bidder  to  be  the 
buyer;  but  if  any  dispute  should  arise,  the  lot  to  be  put  up  again. 
2d,  £25  per  cent,  is  to  be  paid  to  the  auctioneer  as  a  deposit  immedi- 
ately after  the  sale,  and  the  remainder  in  30  days.  The  remainder  of 
the  purchase-money  is  to  be  paid  on  the  goods  being  delivered.  Should 
the  goods  remain  after  the  limited  time,  the  warehouse  rent  from 
that  time  to  be  paid  at  the  rate  of  2s.  per  ton  per  month,  by  the  pur- 

6  Concurring  opinions  were  delivered  by  Holroyd  and  Littledale,  JJ. 


22  GOODS    TO    WHICH   SOMETHING  REMAINS   TO  BE   DONE         (Ch.  2 

chaser.  3d,  the  goods  to  be  taken  at  the  neat  weight  printed  in  the 
catalogue.  4th,  the  goods  to  be  taken  away  in  12  months,  or  resold 
to  pay  the  warehouse  rent.  Upon  failure  of  complying  with  these 
conditions,  the  deposit-money  is  to  be  forfeited,  and  the  commissioners 
to  be  at  liberty  to  resell  any  lots  belonging  to  defaulters,  by  whom 
all  charges  attending  the  same  shall  be  made  good.  Is.  per  lot  under 
ilO,  Is.  6d.  from  £10  to  £25,  and  2s.  above  £25  lot-money  to  be  paid 
by  the  buyer  to  the  auctioneer.     Tare  allowed  for  turpentine  Is.  5d. 

Upon  the  turpentine  being  put  up  to  sale,  the  auctioneer,  by  the 
direction  of  one  of  the  defendants  present,  announced  to  the  bidders 
that  the  casks  of  turpentine  were  to  be  filled  up  before  they  were 
delivered  to  the  purchasers ;  and  that  in  order  to  effect  this,  the  two 
last  lots  would  be  sold  at  uncertain  quantities,  and  the  preceding  lots 
would  be  filled  fiOm  them.  The  whole  of  the  turpentine,  with  the  ex- 
ception of  the  3  lots  before  mentioned,  were  sold  to  the  plaintiffs ;  and 
they  also  were  the  purchasers  of  the  two  last  lots,  from  which  all  the 
lots  without  exception  were  to  be  filled  up:  and  those  two  last  lots 
were  accordingly  marked  by  the  auctioneer  in  his  catalogue  with  the 
words  "more  or  less."  Immediately  after  the  sale  £200  was  paid  by 
the  plaintiffs  to  the  auctioneer,  as  their  deposit;  and  on  the  9th  of 
May,  1808,  the  plaintiffs  paid  to  the  defendants  £1715  upon  account 
of  the  turpentine,  and  the  duties  payable  thereon.  The  turpentine 
remained  in  the  warehouses  of  the  defendants  as  before  the  sale,  but 
was  entered  at  the  custom-house  at  Dover,  in  the  name  of  the  plain- 
tiffs, on  the  morning  of  the  10th  of  May,  1808,  before  the  fire,  by 
Acres  who  paid  on  behalf  of  the  plaintiffs  £450  as  a  deposit  for  the 
duties. 

On  the  same  morning,  the  cooper,  who  had  been  employed  by  the 
defendants  to  make  up  all  the  casks  previous  to  the  sale  of  the  28th 
of  April,  was  sent  for  by  Acres,  who  was  warehouseman  to  the  de- 
fendants, and  who  acted  as  agent  for  the  plaintiffs,  to  fill  up  the  casks 
of  turpentine,  and  he  had  filled  all  of  them  except  8  or  10;  leaving 
them  with  the  bungs  out  to  enable  the  custom-house  officer,  who  was 
expected  every  minute,  to  take  his  gauge  in  order  to  ascertain  the  du- 
ties. The  two  last  lots,  which  were  sold  at  uncertain  quantities,  and 
marked  "more  or  less,"  contained  more  turpentine  than  was  sufficient 
to  fill  up  all  those  bought  by  the  plaintiffs,  and  also  those  bought  by 
the  buyers  of  the  three  lots.  In  filling  the  casks  sold  to  the  plain- 
tiffs one  of  the  two  last  lots  was  used,  and  instead  of  the  other  of  the 
two  last  lots,  a  preceding  cask  in  point  of  number,  which  had  been 
found  to  be  an  ullage  cask,  was  substituted  by  the  cooper,  and  from 
one  of  the  two  last  lots  the  lots  sold  to  the  other  buyers  had  been  pre- 
viously filled  up.  All  the  lots  sold  to  the  other  buyers  had  been  taken 
away  before  the  cooper  came  on  the  10th ;  and  while  the  cooper  was 
employed  in  filling  up  the  plaintiff's'  lots,  and  placing  them  ready,  with 
the  bungs  of  the  casks  out  for  the  custom-house  officer  to  gauge,  but 


Sec.  2)        GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE  DONE  23 

before  he  had  filled  up  all  the  casks,  or  bunged  any  of  them,  a  fire 
took  place  in  the  defendants'  warehouse,  which  consumed  the  whole 
of  the  turpentine  knocked  down  to  the  plaintiffs ;  the  casks  not  having 
been  weighed  again  by  the  plaintiffs,  or  gauged  by  the  custom-house 
ofiicer.  While  the  money  paid  by  the  plaintiffs  to  the  defendants  on 
account  of  the  turpentine  remained  in  their  hands,  they  received  no- 
tice from  the  plaintiff's  not  to  pay  it  over;  and  the  present  verdict  is 
composed  of  that  sum,  deducting  the  £450  paid  on  account  of  the  duty, 
which  has  been  restored  to  the  plaintiffs  by  the  commissioners  of  cus- 
toms. 

The  question  for  the  opinion  of  the  Court  was.  Whether  the  plain- 
tiffs were  entitled  to  recover  back  the  money  so  paid  to  the  defend- 
ants? If  they  were,  the  verdict  was  to  stand:  if  not,  a  nonsuit  was 
to  be  entered. 

Lord  Ellenborough,  C.  J.  The  Court  have  already  intimated  their 
opinion,  as  to  those  casks  in  the  first  lots  which  were  filled  up,  and  on 
which  nothing  remained  to  be  done  on  the  part  of  the  sellers,  but  only 
the  casks  were  left  to  remain  for  30  days  at  the  option  of  the  pur- 
chasers in  the  warehouse  at  the  charge  of  the  sellers :  the  payment 
of  the  warehouse  rent,  however,  is  not  material  in  this  case ;  and  when 
the  casks  were  filled  up,  every  thing  was  done  which  remained  to  be 
done  by  the  sellers.  It  was  necessary,  however,  that  they  should 
be  gauged  before  they  were  removed,  and  the  bungs  were  left  out  for 
the  purpose  of  the  gauger's  doing  his  office,  which  it  was  the  buyer's 
business  to  have  performed;  and  therefore,  according  to  the  case  of 
Hanson  v.  Meyer,  and  the  other  cases,  every  thing  having  been  done 
by  the  sellers,  which  lay  upon  them  to  perform,  in  order  to  put  the 
goods  in  a  deliverable  state  in  the  place  from  whence  they  were  to 
be  taken  by  the  buyers,  the  goods  remained  there  at  the  risk  of  the 
latter.  But  with  respect  to  the  other  ten  casks,  as  the  filling  them  up 
according  to  the  contract  remained  to  be  done  by  the  sellers,  the  prop- 
erty did  not  pass  to  the  buyers,  and  therefore  they  are  not  bound  to 
pay  for  them.'^ 

Upon  this,  it  was  agreed  that  the  proportion  to  be  allowed  to  the 
plaintiffs  on  the  ten  casks  should  be  settled  out  of  court;  and  that 
the  verdict  should  be  entered  accordingly. 


PAINE  &  GEKLER  v.  YOUNG. 

(Court  of  Appeals  of  iSferyland,  1881.     56  Md.  314.) 

Robinson,  J.  James  Young,  Jr.,  conveyed  to  the  appellee  the  stock 
of  carriages  and  wagons,  finished  and  unfinished,  and  also  the  mate- 
rials then  being  in  his  carriage  factory. 

7  Concurring  opinions  were  delivered  by  Le  Blanc  and  Bayley,  JJ. 


24  GOODS    TO    WHICH   SOMETHING  REMAINS    TO   BE   DONE  (Ch.  2 

The  property  was  left  in  the  possession  of  Young,  the  bargainor, 
and  the  unfinished  carriages  were  subsequently  finished  by  him. 
Whether  all  the  materials  used  in  completing  the  carriages  were  the 
materials  included  in  the  bill  of  sale,  or  were  in  part  bought  by  Young, 
the  bargainor,  after  the  date  of  the  bill  of  sale,  the  evidence  in  the 
record  is  somewhat  conflicting.  But  this  question  in  the  view  we  take 
of  the  case  is  quite  immaterial. 

Afterwards  the  appellants  recovered  a  judgment  against  the  bar- 
gainor, and  sold  under  execution  the  carriages  mentioned  in  the  bill  of 
sale.  This  suit  is  brought  by  the  appellee,  to  recover  damages  for  the 
unlawful  seizure  and  sale  of  the  carriages  by  the  appellants.  And  it 
is  insisted  on  the  part  of  the  defence,  that  if  the  carriages  were  fin- 
ished in  part  with  the  materials  included  in  the  bill  of  sale,  and  in 
part  with  materials  furnished  by  the  bargainor  in  the  bill  of  sale,  with 
the  acquiescence  of  the  appellee,  and  that  there  was  such  a  com- 
mingling of  property  as  to  make  it  impossible  to  identify  or  separate 
the  materials  used,  that  under  such  circumstances  the  plaintiff  was  not 
entitled  to  recover.  And  the  decision  in  Hamilton  v,  Rogers,  8  ]\Id. 
321,  is  relied  on  in  support  of  this  contention.  But  that  case  diflfers 
widely  from  the  one  now  before  us.  There  Rogers  mortgaged  not 
only  his  stock  and  materials  then  on  hand,  but  also  all  the  stock  and 
materials  which  he  might  subsequently  purchase  in  the  prosecution 
of  his  business.    And  the  Court  held  : 

1st.  That  the  mortgagee  could  not  maintain  an  action  at  law  against 
a  judgment  creditor  of  Rogers  for  selling  under  execution,  goods  pur- 
chased by  Rogers  after  the  date  of  the  mortgage,  upon  the  ground 
that  one  cannot  sell  that  which  has  not  either  actual  or  potential  ex- 
istence at  the  time  of  the  sale. 

2nd.  That  the  burden  of  proof  was  upon  the  mortgagee,  to  show 
that  the  goods  sold  under  the  execution,  were  on  the  premises  at  the 
date  of  the  mortgage. 

3rd.  Where  property  mortgaged  is  commingled  with  that  subse- 
quently acquired  by  the  mortgagor,  it  is  presumed  to  be  done  with  the 
mortgagee's  permission,  and  if  it  be  so  intermixed  as  to  prevent  separa- 
tion or  identification,  the  rights  of  third  parties  are  not  to  be  afitected 
thereby. 

But  here  the  sale  was  of  a  subject-matter  existing  in  specie,  and 
in  the  possession  of  the  bargainor.  The  contract  of  sale  was  an  ex- 
ecuted contract,  and  the  title  to  the  carriages,  whether  finished  or  un- 
finished, passed  to  the  appellee  upon  the  execution  and  delivery  of 
the  bill  of  sale.  The  mere  fact  that  parts  of  the  materials  used  in 
finishing  tht  carriages  were  furnished  by  the  bargainor,  would  not 
in  itself  operate  to  defeat  the  title  of  the  appellee  as  purchaser  under 
the  bill  of  sale.  How  far  he  might  be  liable  to  the  bargainor,  if  such 
materials  were  furnished  with  his  acquiescence  is  another  question. 
Be  that  as  it  may,  it  did  not  justify  the  appellants  in  selling  the  car- 


Sec.  2)        GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE   DONE  25 

riages  under  an  execution  against  Young,  the  bargainor.  There  was 
no  error  therefore  in  refusing  the  several  prayers  offered  by  the  ap- 
pellants. 

By  the  prayer  offered  by  the  appellee  and  granted  by  the  Court, 
his  right  to  recover  was  based  upon  the  finding  by  the  jury,  that  all 
the  materials  used  in  finishing  the  carriages  were  furnished  by  the  ap- 
pellee. This  he  was  not  obliged  to  prove.  The  appellants,  however, 
have  no  right  to  object  to  an  instruction  which  was  prejudicial  to  the 
appellee  and  not  to  themselves. 

For  these  reasons  the  judgment  will  be  affirmed. 

Judgment  affirmed.^ 


HANSON  v.  MEYER. 

(Court  of  King's  Bench.  1805.     G  East,  614."> 

This  was  an  action  of  trover,  brought  to  recover  the  value  of  33 
cwt.  1  qr.  21  lb.  of  starch,  which  was  tried  before  Lord  EHenborough, 
C.  J.,  at  the  sittings  at  Guildhall  after  Trinity  term,  1803,  when  there 
was  a  verdict  for  the  defendant :  and  a  motion  being  made  for  a  new 
trial,  which  was  argued  in  last  Michaelmas  term,  the  Court  by  consent, 
in  Hilary  term  last,  ordered  a  case  to  be  made  of  the  facts  that  were 
proved  at  the  trial,  which  are  as  follows : 

The  plaintiffs  are  assignees  of  J.  Wallace  and  W.  Hawes  under  a 
commission  of  bankrupt  issued  against  them.  The  defendant  is  a  mer- 
chant in  London.  In  January,  1801,  the  bankrupts  employed  Wright 
their  broker  to  purchase  of  the  defendant  a  quantity  of  starch,  about 
four  tons,  belonging  to  the  defendant,  and  which  was  then  lying  in 
the  Bull  Porters'  warehouse  in  Seething-Lane :  and  Wright  accord- 
ingly purchased  the  starch  of  the  defendant  at  £6  per  cwt.,  and  sent 
to  the  bankrupts,  his  principals,  the  following  note :  "Dear  Sirs,  I 
have  bought  that  small  parcel  of  starch  which  you  saw  of  Mr.  James 
Meyer  for  your  account,  £6  per  cwt.  by  bill  at  2  months:  14  days 
for  delivery  from  the  14th  instant.  Jan.  15th,  1801.  Yours,  &c.  T. 
Wright."  The  starch  lay  at  the  Bull  Porters'.  The  broker  purchased 
for  the  bankrupts  all  Meyer's  starch  that  lay  there,  more  or  less  what- 
ever it  was,  at  £6  per  hundred  weight:  it  was  in  papers:  the  weight 
was  to  be  afterwards  ascertained  at  the  price  aforesaid.  The  mode 
of  delivery  is  as  follows :  the  seller  gives  the  buyer  a  note  addressed 
to  the  warehouse-keeper,  to  weigh  and  deliver  the  goods  to  the  buyer. 
This  note  is  taken  to  the  warehouse-keeper,  and  is  his  authority  to 
weigh  and  deliver  the  goods  to  the  vendee.  The  following  note  was 
given  by  the  defendant :  "To  the  Bull  Porters,  Seething-Lane.  Please 
to  weigh  and  deliver  to  Messrs.  Wallace  and  Hawes  all  my  starch. 
Jan.  17th,  1801.    Per  James  Meyer,  William  Elliott."    This  order  was 

8  See.  also,  Young  v.  Matthews,  L.  R.  2  C.  P.  127  (1S66) ;  Butterworth  v. 
McKinly,  11  Humph.  (Tenn.)  206  (1S50). 


26  GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE  DONE  (Ch.  2 

lodged  by  the  bankrupts  at  the  Bull  Porters'  warehouse  on  the  21st 
of  January,  1801,  on  which  day  the  bankrupts  required  the  Bull  Por- 
ters to  weigh  and  deliver  to  them  540  papers  of  the  starch,  which 
weighed 

Cwt.  qr.  lb. 

21     1     6 

And   on   the  31st  Jan.     250  9     1  20 

And  on  tlie  2d  Feb.  400  15     1     4 


1190  46    0  12 

At  which  respective  times  the  Bull  Porters,  in  consequence  of  their 
order,  weighed  and  delivered  the  same  to  the  bankrupts,  who  immedi- 
ately removed  the  same :  the  residue  thereof,  being  33  cwt.  1  qr.  21  lb. 
remained  at  the  Bull  Porters'  warehouse  till  the  failure  of  Wallace 
and  Hawes.  The  above  quantities  of  starch  continued  at  the  Bull 
Porters'  warehouse  in  the  name  and  at  the  expence  of  the  defendant 
till  they  were  weighed  and  delivered :  and  the  residue  also  afterwards 
continued  there  in  like  manner  unweighed,  in  his  name,  and  charged 
to  his  expence.  On  the  8th  of  Feb.,  1801,  Wallace  and  Hawes  became 
bankrupts.  It  was  admitted  that  the  defendant,  after  the  bankruptcy, 
took  away  the  remainder  of  the  starch  that  had  not  been  so  weighed. 
The  question  for  the  opinion  of  the  Court  was,  whether  the  defend- 
ant were  entitled  to  the  above  verdict?  If  the  Court  should  be  of 
opinion  that  he  was,  then  the  verdict  was  to  stand :  if  not,  then  a  new 
trial  was  to  be  granted  upon  such  terms  as  the  Court  should  direct. 

Lord  Ellenborough,  C.  J.,  now  delivered  judgment. 

By  the  terms  of  the  bargain  formed  by  the  broker  of  the  bankrupts 
on  their  behalf,  two  things,  in  the  nature  of  conditions  or  preliminary 
acts  on  their  part,  necessarily  preceded  the  absolute  vesting  in  them 
of  the  property  contracted  for;  the  first  of  them  is  one  which  does 
so  according  to  the  generally  received  rule  of  law  in  contracts  of  sale, 
viz.  the  payment  of  the  agreed  price  or  consideration  for  the  sale. 
The  second,  which  is  the  act  of  weighing,  does  so  in  consequence  of 
the  particular  terms  of  this  contract,  by  which  the  price  is  made  to 
depend  upon  the  weight.  •  The  weight,  therefore,  must  be  ascertained 
in  order  that  the  price  may  be  known  and  paid :  and  unless  the  weigh- 
ing precede  the  delivery  it  can  never,  for  these  purposes,  effectually 
take  place  at  all.  In  this  case  a  partial  weighing  and  delivery  of  sev- 
eral quantities  of  the  starch  contracted  for  had  taken  place;  the  re- 
mainder of  it  was  unweighed  and  undelivered :  and  of  course  no  such 
bill  of  two  months  for  the  price  so  depending  on  the  weight  could  yet 
be  given.  The  question  is.  What  is  the  legal  effect  of  such  part-de- 
livery of  the  starch  on  the  right  of  property  in  the  undelivered  residue 
thereof  ? 

On  the  part  of  the  plaintiffs  it  is  contended,  that  a  delivery  of  part 
of  an  entire  quantity  of  goods  contracted  for  is  a  virtual  delivery  of 
the  whole,  so  as  to  vest  in  the  vendee  the  entire  property  in  the  whole; 


Sec.  2)        GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE   DONE  27 

although  the  price  for  the  same  should  not  have  been  paid.  This 
proposition  was  denied  on  the  part  of  the  defendant :  and  many  au- 
thorities have  been  cited  on  both  sides.  But  without  deciding  at 
present  what  might  be  the  legal  effect  of  such  part-delivery  in  a  case 
where  the  payment  of  price  was  the  only  act  necessary  to  be  performed 
in  order  to  vest  the  property;  in  this  case  another  act,  it  will  be  re-- 
membered,  was  necessary  to  precede  both  payment  of  price  and  deliv- 
ery of  the  goods  bargained  for,  viz.  weighing.  This  preliminary  act 
of  weighing  it  certainly  never  was  in  the  contemplation  of  the  sellers 
to  waive  in  respect  of  any  part  of  the  commodity  contracted  for.  The 
order  stated  in  the  case  from  the  defendant  to  the  Bull  Porters,  his 
agents,  is  to  weigh  and  deliver  all  his  starch.  Till  it  was  weighed, 
they  as  his  agents  were  not  authorized  to  deliver  it :  still  less  were 
the  buyers  themselves,  or  the  present  plaintiffs,  their  assignees,  au- 
thorized to  take  it  by  their  own  act  from  the  Bull  Porters'  warehouse : 
and  if  they  could  not  so  take  it,  neither  can  they  maintain  this  action 
of  trover  founded  on  such  a  supposed  right  to  take,  or,,  in  other  words, 
founded  on  such  a  supposed  right  of  property  in  the  subject-matter 
of  this  action.  If  any  thing  remain  to  be  done  on  the  part  of  the 
seller,  as  between  him  and  the  buyer,  before  the  commodity  purchasec 
is  to  be  delivered,  a  complete  present  right  of  property  has  not  at 
tached  in  the  buyer;  and  of  course  this  action,  which  is  accommodatec 
to  and  depends  upon  such  supposed  perfect  right  of  property,  is  not 
maintainable. 

The  action  failing,  therefore,  on  this  ground,  it  is  unnecessary  to 
consider  what  would  have  been  the  effect  of  non-payment  of  price  on 
the  right  to  the  undelivered  residue  of  the  starch,  if  the  case  had  stood 
merely  on  that  ground,  as  it  did  in  the  case  of  Hammond  and  Others 
against  Anderson,  1  New  Rep.  69;  where  the  bacon  sold  in  that  case 
was  sold  for  a  certain  fixed  price,  and  where  the  weighing,  mentioned 
in  that  case,  was  merely  for  the  buyer's  own  satisfaction,  and  formed 
no  ingredient  in  the  contract  between  him  and  the  seller;  though  it 
formed  a  very  important  circumstance  in  the  case,  being  an  unequivocal 
act  of  possession  and  ownership  as  to  the  whole  quantity  sold  on  the 
part  of  the  buyer ;  in  like  manner  as  the  taking  800  bushels  of  wheat 
out  of  the  whole  quantity  sold,  and  then  on  board  the  ship,  was  holden 
to  be  in  the  case  of  Slubey  v.  Heywood,  2  H.  Bl.  504. 

Without,  therefore,  touching  the  question  which  has  been  the  main 
subject  of  argument  in  this  case,  and  upon  which  my  opinion  at  nisi 
prius  principally  turned,  and  without  in  any  degree  questioning  the 
a?uthority  of  the  above  mentioned  two  cases  from  the  Common  Pleas, 
this  verdict  may  be  sustained,  on  the  ground  that  the  weighing,  which 
was  indispensably  necessary  to  precede  the  delivery  of  the  goods,  inas- 
much as  it  was  necessary  to  ascertain  the  price  to  be  paid  for  them, 
had  not  been  performed  at  the  time  when  the  action  was  brought. 

The  verdict,  therefore,  must  stand,  and  judgment  be  entered  for  the 
defendant. 


28  GOODS    TO    WHICH    SOMETHING   REMAINS    TO   BE   DONE  (Ch.  2 

TURLEY  V.  BATES. 

(Court  of  Exchecjuer,  1S63.     2  Hurl.  &  C.  200.) 

The  declaration  contained  a  special  count,  alleging  that  the  plain- 
tiff bargained  and  sold,  and  the  defendant  bought  from  the  plaintiff, 
a  quantity  of  fire-clay  then  deposited  on  certain  land  of  the  plaintiff, 
at  the  price  of  two  shillings  per  ton,  upon  the  terms  that  the  defend- 
ant should  take  away  the  goods  and  pay  for  the  same  within  a  reason- 
able time.  It  then,  after  averring  that  all  conditions  had  been  fulfilled 
to  entitle  the  plaintiff  to  have  the  goods  taken  away  and  accepted  by 
the  defendant,  and  that  the  defendant  took  away  and  accepted  a  part 
of  the  goods  under  the  contract,  alleged  as  a  breach  that  the  defendant 
would  not  take  away  and  accept  the  residue  of  the  said  goods,  or  pay 
for  the  same,  whereby  the  plaintiff  lost  the  price  and  profit  he  would 
have  made. 

The  declaration  also  contained  counts  for  goods  bargained  and  sold, 
goods  sold  and  delivered,  and  on  an  account  stated. 

The  defendant,  as  to  the  first  count,  pleaded  a  denial  of  the  buying 
and  selling,  and  of  the  plaintiff's  readiness  to  deliver  and  suft'er  the 
defendant  to  take  away  the  residue.  To  the  rest  of  the  declaration 
he  pleaded,  never  indebted,  and  a  set-off. 

The  cause  was  tried,  before  Channell,  B.,  at  the  Middlesex  Sittings 
after  last  Easter  Term,  when  the  following  facts  appeared  (as  stated 
in  the  judgment,  post,  p.  207).  The  plaintiff"  was  an  Iron  and  Coal 
Master  at  Coseley  in  Staff'ordshire.  In  the  year  1854,  and  between 
that  and  the  year  1857,  he  excavated  and  raised  from  his  colliery,  the 
Coseley  >\Ioore  Colliery,  a  quantity  of  fire-clay.  This  clay  was  stacked 
in  a  heap  on  land  of  the  plaintiff  near  to  the  bank  of  his  colliery. 
Before  December,  1860,  a  portion  of  this  heap  had  been  sold  and 
removed.  In  that  month  a  quantity,  estimated  by  the  plaintiff  at  about 
1500  tons,  still  remained  stacked  in  the  heap.  The  defendant  had  be- 
fore this  time  bought  of  the  plaintiff',  and  carted  and  carried  away, 
portions  of  the  heap.  On  several  occasions,  in  December,  1860,  the 
plaintiff  and  defendant  met,  and  a  bargain  was  come  to  with  respect 
to  the  clay.  This  bargain  was  on  some  points  differently  represented 
by  the  evidence  for  the  plaintiff  and  by  that  of  the  defendant. 

According  to  the  case  for  the  plaintiff  the  bargain  concluded  was 
for  the  sale  and  purchase  of  the  entire  heap  as  then  stacked,  at  the 
price  of  two  shillings  per  ton;  the  plaintiff  being  willing  to  take  that 
price,  instead  of  a  higher  one  which  he  had  demanded,  provided  the 
whole  heap  was  taken  away,  so  that  the  ground  might  be  cleared: 
that  the  defendant  was  at  his  own  expense  to  load  and  cart  it  away ; 
and  that  the  clay,  when  on  its  way  to  the  defendant's  premises,  was 
to  be  weighed  at  a  weighing  machine  belonging  to  one  Johnson,  which 
machine  the  defendant's  carts  would  pass  on  their  way;  and  that  the 
defendant  was  to  pay  for  the  weighing. 


iSeC.  2)        GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE   DONE  29 

It  was  not  denied,  on  the  part  of  the  defendant,  that  a  bargain  was 
made  to  pay  for  such  clay  as  he  might  take  away  at  the  rate  of  two 
shillings  per  ton,  nor  that  such  clay  was  to  be  carted  and  weighed  at 
his  own  expense ;  but  it  was  contended  by  the  defendant  that  the  bar- 
gain was  not  tor  the  whole  heap  as  it  stood,  but  only  for  such  portion 
of  the  clay  as  the  defendant  choose  to  send  for  and  cart  away,  and 
after  having  it  weighed  at  Johnson's  machine,  to  pay  for  it  at  the  rate 
aforesaid.  No  point  was  made,  on  the  Statute  of  Frauds,  that  the 
contract  was  not  in  writing — whether  the  verbal  bargain  was  for  the 
whole  or  for  only  a  portion  of  the  stack  was  the  principal  question 
in  the  cause.  It  was,  however,  further  contended  by  the  defendant 
that  whatever  the  quantity  contracted  to  be  bought,  it  was  bought 
on  a  warranty  by  the  plaintiff  that  the  clay  would  stand  a  red  heat. 

After  the  bargain  the  defendant  at  different  times,  as  he  thought 
fit,  carted  away  portions  of  the  clay,  in  the  whole  about  270  tons. 
On  the  three  or  four  first  occasions  of  carting  away,  the  clay  was 
weighed  at  Johnson's  machine.  On  one  occasion,  the  last,  and  without 
any  notice  to  the  plaintiff,  clay  was  loaded  by  the  defendant's  servants 
and  carted  away  in  an  opposite  direction  to  the  weighing  machine, 
and  such  clay  was  taken  to  a  canal  where  it  was  loaded  into  a  boat 
and  taken  by  water  carriage  to  Liverpool.  The  plaintiff,  whilst  the 
defendant's  men  were  carting  this  last  clay,  saw  them  and  followed 
them,  and  the  clay  was  guaged  on  the  barge  in  the  plaintiff's  presence 
at  twenty-two  tons. 

Evidence  was  given,  on  the  part  of  the  defendant,  that  the  clay 
which  had  been  taken  away  by  him  had  been  used  in  his  business,  and 
did  not  answer  the  warranty  alleged  to  have  been  given.  On  this 
ground  also  he  denied  his  liability  to  take  or  pay  for  more  than  had 
been  removed.  This  evidence  became  immaterial,  as  the  learned  Judge 
ruled  there  was  no  evidence  of  a  warranty. 

All  the  clay  so  taken  away  by  the  defendant  had  either  been  paid 
for  before  action  brought  or  was  covered  by  a  set-off. 

The  learned  Judge  left  to  the  jury  the  question  what  was  the  bar- 
gain ;  and  they  found,  for  the  plaintiff,  that  the  bargain  was  a  bargain 
for  the  whole.  It  was  then  further  objected  by  the  defendant,  that, 
assuming  that  the  verbal  bargain  was  for  the  sale  of  the  whole  of  the 
stack  of  clay,  and  further  that  there  was  no  defence  on  the  ground  of 
warranty,  yet,  as  the  clay  sought  to  be  recovered  for  had  never  been 
weighed  at  Johnson's  machine,  the  count  for  goods  bargained  and  sold 
could  not  be  maintained ;  and  that,  in  the  absence  of  any  evidence  of 
any  fall  in  the  value  of  clay  or  other  loss  by  reason  of  not  taking  it 
away,  the  plaintiff  could  at  most,  recover  only  nominal  damages. 

No  evidence  of  any  actual  loss  or  damage  was  given  and  a  verdict 
was  then  entered  for  the  plaintiff",  by  consent,  for  the  sum  of  £112 
10s.  6d.,  as  the  estimated  value  of  the  clay  not  removed,  at  the  contract 
price  of  two  shillings  per  ton :  leave  being  reserved  to  the  defendant 
to  limit  the  verdict  to  the  first  count,  and  to  nominal  damages  on  that 


30  GOODS    TO    WHICH    SOMETHING   REMAINS    TO   BE   DONE         (Ch.  2 

count  in  case  this  Court  should  be  of  opinion  that  the  plaintiff  was 
only  entitled  to  recover  on  that  count. 

ChannelIv,  B.  This  was  an  action  tried  before  me  at  the  Middlesex 
Sittings,  in  last  Easter  Term.  (His  Lordship  then  stated  the  pleadings, 
and  proceeded.)  At  the  trial  a  verdict  was  found  for  the  plaintiff, 
damages  £112  10s.  6d.,  with  leave  reser^-ed  to  the  defendant  to  move 
to  reduce  the  verdict  to  nominal  damages  on  the  ground  hereafter  men- 
tioned. (His  Lordship  then  stated  the  facts  as  above  set  forth,  p.  201.) 
This  rule  was  argued  before  the  Lord  Chief  Baron,  my  Brother  Bram- 
well,  and  myself. 

For  the  plaintiff  it  was  contended,  that  where  full  authority  was 
given  to  the  buyer  to  remove  the  clay  sold,  and  all  that  the  seller  had 
to  do  according  to  the  contract  was  complete,  and  where  everything 
that  remained  to  be  done  was  to  be  done  by  the  buyer  at  his  own  ex- 
Ipense,  viz.,  as  in  this  case,  to  cart  away  and  have  the  clay  weighed  at 
his  own  expense,  it  must  be  taken  as  if  there  had  been  such  a  bargain 
and  sale  as  to  pass  the  property  though  the  clay  had  not  been  removed 
and  weighed,  and  that  the  contract  price  might  be  recoverable  on  the 
count  for  goods  bargained  and  sold. 

For  the  defendant  it  was  contended,  that  taking  the  case  on  the 
plaintift''s  evidence,  and  as  found  by  the  jury,  that  there  had  been  a 
removal  and  weighing  of  part  of  the  clay,  yet  no  property  passed  in 

(ny  clay  until  the  clay  had  been  weighed  at  Johnson's  machine  and 
he  quantity  and  price  thus  ascertained,  so  as  to  entitle  the  plaintiff"  to 
ecover  on  the  count  for  goods  bargained  and  sold. 
In  the  course  of  the  argument  for  the  defendant  we  were  referred 
to  several  cases  decided  in  our  Courts  which  were  said  to  govern  the 
question,  and  to  a  passage  from  my  Brother  Blackburn's  Treatise  on 
Contract  of  Sale,  part  2,  chap.  2,  p.  152.  It  was  argued  that  the  rule 
deducible  from  these  authorities  was,  that  so  long  as  a  price  had  been 
agreed  upon  according  to  quantity,  to  be  ascertained  by  weighing,  that 
until  the  goods  had  been  weighed  and  the  price  so  ascertained  the 
contract  was  incomplete;  which  rule  it  was  said  was  in  accordance 
with  the  rule  given  in  Pdthier,  Contr.  de  Vente,  with  Kent's  Commen- 
taries, vol.  2,  p.  405,  §  309,  New  York  Edition,  1849,  the  Code  Civil, 
liv.  iii.,  tit.  vi.,  chap.  1,  arts.  1585,  1586,  1587. 

The  rule  as  stated  in  Blackburn  on  Contract  of  Sale,  p.  152,  is, 
"That  where  anything  remains  to  be  done  to  the  goods  for  the  pur- 
pose of  ascertaining  the  price,  as  by  weighing,  measuring,  or  testing 
the  goods  where  the  price  is  to  depend  on  the  quantity  or  quality  of 
the  goods,  the  performance  of  these  things,  also,  shall  be  a  condition 
precedent  to  the  transfer  of  the  property,  although  the  individual  goods 
be  ascertained,  and  they  are  in  the  state  in  which  they  ought  to  be  ac- 
cepted." 

After  adverting  to  the  rule  as  one  wholly  adopted  from  the  civil 
law,  the  learned  author  (at  page  153)  says:    "In  general,  the  weigh- 


Sec.  2)        GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE   DONE  31 

ing,  etc.,  must  from  the  nature  of  things  be  intended  to  be  done  before 
the  buyer  takes  possession  of  the  goods,  but  that  is  quite  a  different 
thing  from  intending  it  to  be  done  before  the  vesting  of  the  property ; 
and  as  it  must  in  general  be  intended  that  both  the  parties  shall  con- 
cur in  the  act  of  weighing  when  the  price  is  to  depend  on  the  weight, 
there  seems  little  reason  why,  in  cases  where  the  specific  goods  are 
agreed  upon,  it  should  be  supposed  to  be  the  intention  of  the  parties 
to  render  the  delay  of  that  act,  in  which  the  buyer  is  to  concur,  bene- 
ficial to  him.  Whilst  the  price  remains  unascertained,  the  sale  is  clearly 
not  for  a  sum  oi  money,  and  therefore  does  not  come  within  the 
civilian's  definition  of  a  perfect  sale,  transferring  the  risk  and  gain 
of  the  thing  sold;  but  the  English  law  does  not  require  that  the  con- 
sideration for  a  bargain  and  sale  should  be  in  moneys  numbered  pro- 
vided it  be  of  value." 

The  learned  author,  however,  considered  the  rule  he  mentions  to 
prevail  here,  and  to  rest  upon  the  authority  of  the  English  decided 
cases.  Several  case  are  then  cited  in  the  Treatise :  Hanson  v.  Meyer, 
6  East,  614;  Hinde  v.  Whitehouse,  7  East,  558;  Rugg  v.  Minett,  11 
East,  210;  Zagury  v.  Furnall,  2  Camp.  240;  Simmons  v.  Swift,  5  B. 
&  C.  857  (E.  C.  L.  R.  vol.  11);  Laidler  v.  Burlison,  2  M.  &  W.  602; 
Tripp  v.  Armitage,  4  M.  &  W.  687.  The  author  further  observes, ^ 
"That  if  it  appear  from  the  agreement  that  the  intention  of  the  parties 
is  that  the  property  shall  pass  presently,  the  property  does  pass  though 
there  remain  acts  to  be  done  by  the  vendor  before  the  goods  are  de- 
liverable ;"  citing  Wood  v.  Russell,  5  B.  &  A.  942  (E.  C.  L.  R.  vol.  27) ; 
Clarke  v.  Spence,  4  A.  &  E.  448  (E.  C.  L.  R.  vol.  31). 

It  is  very  doubtful  whether  in  stating  the  rule  to  be  that  where  any- 
thing remains  to  be  done  to  the  goods  for  ascertaining  the  price,  as 
weighing,  etc.,  the  performance  was  a  condition  precedent  to  the 
transfer  of  the  property,  it  was  meant  by  the  learned  author  to  in- 
clude a  case  where  all  that  remained  to  be  done  was  to  be  done  by 
the  buyer  with  full  authority  from  the  seller  to  do  the  act. 

In  Hanson  v.  Meyer  the  weighing  was  to  precede  the  delivery,  and 
was  a  condition  precedent  to  the  purchaser's  right  to  take  possession 
and  to  a  complete  present  right  of  property.  In  Hinde  v.  Whitehouse, 
which  was  a  case  of  a  sale  by  auction,  it  was  held  that  though  the 
duties  to  the  Crown  remained  to  be  paid  by  the  seller  before  posses- 
sion could  be  had  by  the  buyer,  the  property  passed  from  the  time  of 
sale ;  the  words  of  the  conditions  showing  that  intention.  In  Rugge 
V.  Minett  a  duty  remained  to  be  performed  by  the  sellers ;  and  Lord 
Ellenborough  stated  the  test  be  "whether  ever}'thing  had  been  done 
by  the  sellers  which  lay  upon  them  to  perform  in  order  to  put  the 
goods  in  a  deliverable  state;"  and  Mr.  Justice  Bayley,  in  effect,  adopted 
the  same  test.  Zagury  v.  Furnall  is  an  authority  to  the  same  effect. 
There  it  was  the  duty  of  the  seller  to  count  the  skins  in  each  bale,  and 
the  price  was  for  a  certain  sum  per  dozen  skins.    In  Simmons  v.  Swift, 


32  GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE   DONE         (Ch.  2 

the  authority  most  in  point  for  the  defendant,  it  was  a  part  of  the 
contract  there  for  the  sale  of  a  stack  of  bark  at  £9  per  ton,  that  the 
bark  should  be  weighed,  and  the  concurrence  of  the  seller  in  the  act 
of  weighing  was  necessary.  Bayley,  J.,  after  stating  the  general  prin- 
ciple, says :  "If  anything  remains  to  be  done  on  the  part  of  the  seller, 
until  that  is  done  the  property  is  not  changed." 

From  a  consideration  of  these  cases,  it  appears  that  the  principle 
involved  in  the  rule  above  quoted  is,  that  something  remains  to  be  done 
by  the  seller.  It  is,  therefore,  very  doubtful,  as  before  stated,  whether 
the  present  case  comes  within  the  principle  of  the  rule.  But,  however 
I  that  may  be,  it  is  clear  that  this  rule  does  not  apply  if  the  parties  have 
made  it  sufficiently  clear  whether  or  not  they  intend  that  the  property 
shall  pass  at  once,  and  that  their  intention  must  be  looked  at  in  every 
case.  This  is  clearly  laid  down  in  the  case  of  Logan  v.  Le  Mesurier, 
11  Moo.  P.  C.  C.  116.  and  in  Hinde  v.  Whitehouse,  7  East,  558,  cited 
supra,  and  in  Blackburn  on  Contract  of  Sale,  p.  151. 

In  the  present  case  the  jury  have,  in  effect  adopted  the  plaintiflf's 
version  of  the  bargain,  by  their  finding  that  it  was  for  the  whole  heap. 
.And  taking  that  view  of  the  case,  it  seems  to  us  clear  that  the  inten- 
tion of  the  parties  was  that  the  property  in  the  whole  heap  should  pass, 
liotwithstanding  the  clay  was  to  be  weighed  at  Johnson's  machine; 
and  we,  therefore,  think  that  the  rule  to  reduce  the  damages  must  be 
discharged. 

Rule  discharged. 


/ 


NICHOLSON  V.  TAYLOR. 

(Supreme  Court  of  Pennsylvania,  1S58.     31  Pa.  12S,  72  Am.  Dec.  728.) 

Thompson,  J.®  "When  the  lawful  form  of  contracting  is  pur- 
sued," said  Mr.  Justice  Lowrie  in  Winslow,  Lanier  &  Co.  v.  Leonard, 
24  Pa.  14,  62  Am.  Dec.  354,  "the  vesting  of  the  title  always  depends 
upon  the  intention  of  the  parties,  to  be  drawn  from  the  contract  and 
its  circumstances,"  and  ""it  is  perfectly  legitimate  to  point  to  the  want 
of  measuring  and  setting  apart  as  evidence,  in  the  very  nature  of  the 
transaction,  that  it  was  not  intended  as  a  perfect  sale :"  Id.  Going 
further  in  this  direction  than  mere  evidence,  C.  J.  Gibson,  in  Hazard 
V.  Hamlin,  5  Watts  (Pa.),  201,  declared  that  "where  nothing  is  paid  or 
delivered,  it  is  agreed  on  all  hands  that  the  contract  is  merely  ex- 
ecutory." 

This  is  true  of  such  a  contract  standing  alone;  whether  taken  as 
an  axiom  or  as  evidence  merely,  the  dilterence  is  in  terms  only.  No 
intention  is  to  be  drawn  from  a  contract  but  what  it  expresses,  when 
there  is  nothing  else  to  manifest  it ;  so  that  the  difference  of  terms  in 
stating  the  proposition  leaves  the  rule  the  same,  namely,  that  so  long 

»  The  statement  of  facts  is  omitted. 


Sec.  2)        GOODS    TO    WHICH    SOMETHING   REMAINS    TO   BE   DONE  33 

as  anything  remains  to  be  done  as  between  the  vendor  and  vendee,  for  / 
the  purpose  of  ascertaining  the  amount  and  price  of  the  article,  the^ 
property  and  risk  remains  in  the  vendor ;  it  is  not  changed :  Addison 
on  Contracts,  222,  223;  Hanson  v.  Meyer,  6  East,  614;  Ward  v.  Shaw, 
7  Wend.  (N.  Y.)  404;  Lester,  Sennett  &  Co.  v.  McDowell,  18  Pa.  92; 
Hutchinson  v.  Hunter,  7  Pa.  140 ;  Smvth  v.  Craig,  3  Watts  &  S.  (Pa.) 
20 ;  Winslow,  Lanier  &  Co.  v.  Leonard,  24  Pa.  14,  62  Am.  Dec.  354 ; 
Nesbit  V.  Burry,  25  Pa.  208.  This  rule  is  predicable  of  cases  where 
no  actual  delivery  of  the  property  has  taken  place,  and  it  is  sought  to 
give  the  contract  the  effect  of  changing  the  possession.  If  parties 
choose  to  deliver  property  without  the  price  being  fixed,  the  property 
will  pass,  because  it  is  the  contract  and  intention  to  pass  it. 

But  we  have  to  do  with  a  case  not  of  this  last  kind.  The  contract  is 
as  follows : 

"Sold  Messrs.  R.  L.  &  C.  L.  Nicholson,  load  of  Pine  creek  lumber, 
within  the  neighborhood  of  5000  feet  of  plank,  at  $15.50  and  expenses, 
take  a  note  at  6  months,  with  interest.  T.  B.  Taylor  &  Co.  8th  Mo. 
11th." 

A  Pine  creek  load  of  lumber,  it  would  appear  contains  about  50,000 
feet  board  measure,  a  portion  of  which  in  this  case  was  plank.  The 
oral  testimony  left  the  case  just  as  it  found  it,  giving  nothing  in  regard 
to  the  intention  of  the  parties  but  what  was  contained  in  it.  The  de- 
fendants below  refused  to  deliver  the  lumber,  alleging  that  they  were 
mistaken  in  the  amount  of  the  plank  contained  in  it — that  in  place  of 
5000  there  were  10,000  feet,  and  which  they  charged  that  plaintiffs 
knew ;  but  they  offered  to  deliver  the  load,  or  the  amount  of  it,  with 
5000  feet  of  plank  in  it.  The  plaintiff's  refused  to  take  it.  This  be- 
ing the  situation  of  things  between  the  parties,  and  the  plaintiffs  claim- 
ing that  the  property  passed  to  them,  brought  a  special  action  on  the 
case  against  the  defendants  in  which  they  had  a  count  in  trover.  On 
the  trial  in  the  district  court,  the  point  was  reserved  as  to  whether  the 
property  passed  by  the  contract ;  and  a  verdict  was  rendered  in  favor 
of  plaintiff's  for  $1050.50,  its  entire  value.  Afterwards  the  court  en- 
tered judgment  for  the  defendants  non  obstante  veredicto,  on  the  point 
reserved. 

The  case  stands  now  simply  upon  the  rights  of  the  parties  as  created 
by  the  written  contract.  Applying  the  rule  already  laid  down,  "that 
when  something  remains  to  be  done  between  the  vendor  and  vendee  / 
for  the  purpose  of  ascertaining  the  amount  and  price  of  the  article, k 
the  property  and  risk  remains  in  the  vendor,"  to  this  case,  we  will 
have  but  little  difficulty  in  coming  to  a  conclusion.  The  lumber  was  to 
be  measured  before  the  price  could  be  ascertained,  so  as  to  give  the  six 
months'  note  for  the  payment.  This  was  in  point  of  labor,  as  well  as 
m  other  particulars,  an  important  item  of  the  transaction.  No  time 
was  set  for  the  measurement,  or  for  giving  the  note,  the  latter  being 
consequent  only  on  the  former ;  all  showing  that  the  contract  was  but 
WooDw.  Sales — 3 


34  GOODS    To    -^VHICH    SOMETHING   REMAINS    TO   BE   DONE  (Ch.  2 

executor}''  in  fact  and  intention.  The  property  therefore  remained  in 
the  vendor,  and  the  plaintiffs  had  no  legal  right  to  recover  its  value 
in  trover;  property  in  the  plaintiffs  being  necessary  to  enable  them 
to  do  so.  They  were  at  no  time  debarred  from  suing  for  damages 
for  a  breach  of  the  contract,  if  any  such  had  occurred.  We  think  the 
court  below  were  right  in  their  decision,  and  this  judgment  must  be 
affirmed. 

Judgment  affirmed.^* 


BOSWELL  V.  GREEN. 

(Supreme  Court  of  New  Jersey,  1856.     25  N.  J.  Law,  390.) 

Potts,  J.^^  This  was  an  action  of  replevin,  brought  by  Edward 
M.  Green  against  William  Boswell,  sheriff  of  the  county  of  Mercer. 
Boswell,  by  virtue  of  executions  in  his  hands,  seized  a  lot  of  coal,  lying 
at  the  coal  yard  of  Fish  &  Co.,  as  the  property  of  Dewar,  Mein  & 
Kay,  the  defendants  in  execution.  Green  thereupon  issued  his  writ 
of  replevin,  claiming  to  have  purchased  the  coal  from  Dewar,  Mein 
&  Kay.  The  sheriff'  gave  the  usual  bond ;  the  coal  was  left  in  his 
possession,  and  subsequently  sold  for  the  benefit  of  the  execution  cred- 
itors. On  the  trial,  the  verdict  was  for  Green,  the  plaintiff,  and  the 
jury  assessed  his  damages  at  $2866.43  and  costs.  The  several  matters 
assigned  as  errors  will  be  noticed  in  the  order  in  which  they  were  dis- 
cussed on  the  argument.     *     *     * 

V.  Another  ground  of  error  assigned  is,  that  the  court  charged  the 
jury,  "that  it  was  not  necessary  to  pass  the  title  to  the  coal,  that  the 
whole  quantity  should  be  ascertained ;  and  that  the  title  to  the  coal,  if 
the  jury  believed  the  witnesses,  did  vest  in  the  plaintiff'  before  the  ag- 
gregate price  was  known ;  and  that  the  coal  was  not  till  then  at  the 
risk  of  the  seller,  but  at  the  risk  of  the  said  Green,  after  the  delivery 
by  J.  S.  Fish  &  Co. ;"  whereas  the  judge  ought  to  have  charged,  that 
it  was  necessary  to  pass  the  title,  that  the  whole  quantity  of  coal  should 
be  ascertained,  and  that  the  title  did  not  vest  in  the  plaintiff"  before  the 
aggregate  price  was  known,  and  that  there  was  no  delivery  by  Fish 
&  Co. 

The  quantity  of  coal  was  not  ascertained  at  the  time  of  the  making 
and  delivery  of  the  bill  of  sale  of  the  6th  September.^^     It  lay  on  the 

10  Perhaps  the  leading  American  case  in  support  of  the  rule  of  Hanson  v. 
Me.ver  is  lingham  v.  Eggleston,  27  Mich.  324  (1S73). 

11  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 

12  The  bill  of  sale  was  as  follows: 

"This  is  to  certify,  thar  Edward  M.  Green  has  this  day  purchased  of  us 
all  the  coal,  our  property,  now  on  the  wharf  of  .Toua  S.  Fish  &  Co.  at  $4.70 
per  ton  for  the  egg  and  stove  coal,  and  $4  for  chestnut ;  and  we  hereby  di- 
rect the  said  Jona  S.  Fish  &  Co.  to  deliver  possession  of  said  coal  to  said 
Green.  Dewar,  Mein  &  Kay. 

"Dated  Sept.  6,  1854." 


Sec.  2)        GOODS    TO    WHICH    SOMETHING   REMAINS    TO   BE   DONE  35 

wharf  of  Fish  &  Co.  All  that  Kay,  in  the  name  of  the  firm,  did  was  to 
deliver  the  paper,  at  the  time  it  was  signed,  to  Green.  Fish  says : 
"On  the  morning  of  the  6th  September,  Green  called  on  me  with  the 
order  of  that  date.  I  told  him  I  had  no  objection  to  giving  the  coal 
to  him,  subject  to  the  claim  of  Fish  &  Co.  for  $108.18  for  wharfage. 
I  gave  him  possession,  subject  to  our  claim,  by  signing  at  the  foot  of 
the  order  this  note :  'Possession  delivered  of  the  above  mentioned  coal 
in  compliance  of  the  above  order,  subject  to  a  payment  of  $108.18  for 
unloading  and  wharfage  on  this  coal.  September  6,  1854.  J.  S.  Fish 
&  Co.'  " 

The  coal  remained  where  it  lay,  and  on  the  morning  of  the  7th  was 
levied  on  by  the  defendant  under  the  executions  in  his  hands,  and 
subsequently  sold  by  him,  to  wit,  464  tons  of  egg  coal,  133  tons  of 
chestnut,  and  251/2  tons  of  stove  coal.  The  sheriff  paid  Fish  &  Co. 
the  $108.18  the  morning  after  the  sale. 

These  are  substantially  the  facts  proved.  The  question  is,  was  the 
sale  and  delivery  to  Green  complete,  so  as  to  vest  the  title  in  him  on 
the  6th  September?  The  defendant's  counsel  insists  it  was  not,  and 
the  title  did  not  vest,  because  the  quantity  of  coal  had  not  been  ascer- 
tained. 

There  is  abundant  authority  for  the  doctrine  that  the  property  does 
not  pass  absolutely  unless  the  sale  be  completed ;  that  it  is  not  com-  / 
pleted  until  the  happening  of  any  event  expressly  provided  for,  or  so^/ 
long  as  anything  remains  to  be  done  to  the  thing  sold  to  put  it  into  a 
condition  for  sale,  or  to  identify  it,  or  discriminate  it  from  other 
things,  or  to  determine  its  quantity,  if  the  price  depends  on  this,  mi- 
less  this  is  to  be  done  by  the  buyer  alone.  1  Parsons  on  Cont.  441 ; 
Simmons  v.  Swift,  5  Barn.  &  Cress.  857;  Alexander  v.  Gardner,  1 
Bingham's  N.  C.  671,  per  Justice  Park;  Swanwick  v.  Sothem,  9  Adol. 
&  Ellis,  895,  per  Lord  Denman;  Hanson  v.  Meyer,  6  East,  614; 
Rapelye  v.  Mackie,  6  Cow.  (N.  Y.)  250;  Outwater  v.  Dodge,  7  Cow. 
(N.  Y.)  85;  Ward  v.  Shaw,  7  Wend.  (N.  Y.)  404;  and  see  cases  col- 
lected in  Ross  on  Contracts,  p.  1,  etc. 

But  these  are  all  cases  upon  the  construction  of  contracts,  where  the 
intention  of  the  parties  was  the  real  question  in  controversy.  Where 
it  is  clear,  by  the  terms  of  the  contract,  that  the  parties  intended  tha^ 
the  sale  should  be  complete  before  the  article  sold  is  weighed  or  meas- 
ured, the  property  will  pass  before  this  is  done.  Tarling  v.  Baxter, 
6  Barn.  &  Cress.  360,  per  Bayley,  J. ;  Logan  v.  Mesurier,  6  Moore's 
P.  C.  Cases,  131,  per  Lord  Brougham;  Riddle  v.  Varnum,  20  Pick. 
(Mass.)  280.  It  must  be  so.  There  is  nothing  illegal  in  such  a  con- 
tract; and  where  contracts  are  legal,  made  in  good  faith,  and  not 
contrary  to  public  policy,  courts  are  bound  to  give  them  effect  accord- 
ing to  the  clearly  expressed  intention  of  the  parties  who  make  them. 

In  this  case  the  bill  of  sale,  the  order  for  delivery,  and  the  mem- 
orandum of  delivery  were  in  writing.     The  intention  to  sell  and  pass 


36  GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE   DONE         (Ch.  2 

the  title  and  possession  at  the  time  was  clear  upon  the  face  of  the 

papers,  and  was  supported  by  the  evidence.    The  legal  inference,  from 

the  facts  and  documents  before  the  court,  undoubtedly  was  that  the 

title  passed,  and  so  the  court  told  the  jury.     There  is  no  error  in  this. 
*     *     * 

The  judgment  should  be  affirmed. 

The  Chief  Justice,  and  Elmer  and  Haines,  Justices,  concurred. ^^ 


SANGER  et  al.  v.  WATERBURY  et  al. 
(Court  of  Appeals  of  New  York,  1889.     116  N.  Y.  371,  22  N.  E.  404.) 

Appeal  from  judgment  of  the  general  term  of  the  supreme  court, 
in  the  second  judicial  department,  entered  upon  an  order  made  De- 
cember 14,  1886,  which  affirmed  a  judgment  in  favor  of  the  defend- 
ants, entered  upon  a  verdict  directed  by  the  court. 
/  This  was  an  action  of  replevin  brought  to  recover  the  possession 
''^of  238  bags  of  coffee  identified  and  described  in  the  complaint  as  fol- 
lows: "89  bags,  marked  No.  6,  H.  L.  B.  &  Co.,  D.  B.  &  Co.;  32 
bags,  marked  No.  8,  H.  L.  B.  &  Co.,  D.  B.  &  Co. ;  14  bags,  marked 
No.  10,  H.  L.  B.  &  Co.,  D.  B.  &  Co. ;  29  bags,  marked  No.  12,  H.  L. 
B.  &  Co.,  D.  B.  &  Co. ;  68  bags,  marked  No.  14,  H.  L.  B.  &  Co.,  D. 
B.  &  Co. ;  6  bags,  marked  No.  16,  H.  L.  B.  &  Co.,  D.  B.  &  Co." 

The  complaint  alleged,  and  the  answer  admitted,  "that  on  or  about 
the  22d  day  of  July,  1885,  the  "said  goods  *  *  *  were  sold  by 
the  plaintiffs  to  the  defendants  John  K.  Huston  and  James  E.  Huston, 
*  *  *  on  the  credit  of  sixty  days  for  one-half  thereof,  and  of 
ninety  days  for  the  balance  thereof."  It  appeared  that  the  plaintiffs, 
on  the  6th  day  of  July,  1885,  purchased  of  Boulton,  Bliss  &  Dallett 
605  bags  of  coft'ee,  then  stored  with  E.  B.  Bartlett  &  Co.  On  the 
22d  day  of  July  the  plaintiffs  sold  the  238  bags  of  coft'ee  hereinbefore 
referred  to  to  J.  K.  Huston  &  Co.,  of  Philadelphia.  That  firm,  on 
the  24th  day  of  July,  upon  the  security  of  the  coft'ee  thus  purchased, 
borrowed  from  the  defendants  Waterbury  &  Force  $2,300,  and  then 
transferred  the  coffee  to  them.  On  July  27th  following,  said  firm 
failed,  making  a  general  assignment.  On  the  next  day,  the  plaintiffs 
commenced  this  action,  by  means  of  which  the  coffee  was  taken  from 
the  possession  of  Waterbury  &  Force.  The  coffee  then  was,  as  it 
l/  had  been  from  the  time  of  the  purchase  by  the  plaintiffs,  actually  de- 
posited in  the  warehouse  of  E.  B.  Bartlett  &  Co.,  and  had  not  as  ye<" 
been  weighed. 

ParkeR;,  J.  (after  stating  the  facts  as  above).  The  appellants  con- 
tend that  the  title  to  the  coffee  in  controversy  did  not  pass  to  J.  K. 
Huston  &  Co.,  and  that  therefore  the  transfer  to  \\"aterbury  &  Force 

13  See,  also,  Allen  v.  Elmore,  121  Iowa,  241,  96  N.  W.  769  (1903). 


Sec.  2)        GOODS    TO    WHICH   SOMETHING   REMAINS    TO   BE   DONE  37 

did  not  vest  in  them  the  title  or  the  possession.  The  sale  is  admitted ; 
but  as  the  cofifee  had  to  be  weighed,  in  order  to  ascertain  the  amounts 
to  be  paid  to  plaintiffs,  it  is  insisted  that  the  title  remained  in  the 
plaintiffs.  In  aid  of  this  contention  is  invoked  the  rule  that  where 
something  remains  to  be  done  by  the  seller  to  ascertain  the  identity, 
quantity,  or  quality  of  the  article  sold,  or  to  put  it  in  the  condition 
which  the  contract  requires,  the  title  remains  in  the  vendor  until  the 
condition  be  complied  with. 

The  appellants  cite  a  number  of  authorities  which,  they  urge,  so 
apply  this  rule  as  to  make  it  applicable  to  the  case  here  presented.  It 
is  said  in  Groat  v.  Gile,  51  N.  Y.  431,  that  this  "rule  has  reference  to  a 
sale,  not  of  specific  property  clearly  ascertained,  but  of  such  as  is  to^ 
be  separated  from  a  larger  quantity,  and  is  necessary  to  be  identified 
before  it  is  susceptible  of  delivery.  The  rule  or  principle  does  not 
apply  where  the  number  of  the  particular  articles  sold  is  to  be  ascer- 
tained for  the  sole  purpose  of  determining  the  total  value  thereof  at 
certain  specified  rates,  or  a  designated  fixed  price."  This  distinction 
is  recognized  and  enforced  in  Crofoot  v.  Bennett,  2  N.  Y.  258 ;  Kim- 
berly  v.  Patchin,  19  N.  Y.  330,  7S  Am.  Dec.  334 ;  Bradley  v.  Wheeler, 
44  N.  Y.  495.  In  Crofoot  v.  Bennett,  supra,  the  court  say:  "If  the 
goods  sold  are  clearly  identified,  then,  although  it  may  be  necessary 
to  number,  weigh,  or  measure  them,  in  order  to  ascertain  what  would 
be  the  price  of  the  whole  at  a  rate  agreed  upon  between  the  parties, 
the  title  will  pass."  This  expression  of  the  court  is  cited  with  approv- 
al in  Burrows  v.  Whitaker,  71  N.  Y.  291.  27  Am.  Rep.  42,  in  which 
case,  after  a  full  discussion  of  the  authorities,  the  court  approved  the 
rule  as  laid  down  in  Groat  v.  Gile,  supra. 

Now  applying  that  rule  to  the  facts  in  this  case,  nothing  remained 
to  be  done  in  order  to  identify  the  goods  sold ;  because  while,  out  of 
a  larger  lot,  238  bags  of  coffee  were  disposed  of.  nevertheless,  as  ap- 
pears from  the  complaint  and  the  testimony  adduced,  the  bags  were 
so  marked  that  there  was  no  difficulty  about  identifying  the  particular 
bags  sold.  There  remained,  therefore,  nothing  to  be  done  except  to 
weigh  the  coffee  for  the  purpose  of  ascertaining  the  purchase  price : 
for  whether  the  238  bags  of  coffee  should  prove  to  weigh  more  or  less 
than  the  parties  anticipated  was  not  of  any  consequence.  Whatever 
it  should  prove  to  be,  for  that  number  of  pounds  J.  K.  Huston  &  Co. 
had  agreed  to  pay. 

This  case,  therefore,  does  not  come  within  the  rule  contended  for 
by  the  appellant,  but,  instead,  is  governed  by  the  principle  enunciated 
in  Groat  v.  Gile. 

Having  reached  the  conclusion  that  the  title  and  the  possession 
passed  to  J.  K.  Huston  &  Co.,  it  becomes  unnecessary  to  consider  any 
of  the  other  questions  discussed,  for  the  plaintiff  is  without  title  upon 
which  to  found  the  right  to  maintain  an  action. 

The  judgment  appealed  from  should  be  affirmed.     All  concur. 

Judgment  affirmed. 


38  "sale  or  return"  and  "sale  on  approval"  (Ch.  2 


SECTION  3.— "SALE  OR  RETURN"  AND  "SALE  ON 
APPROVAL" 


ELPHICK  V.  BARNES. 
(Common  Pleas  Division,  1880.     5  C.  P.  Div.  321.) 

De;nman,  J.^^  The  plaintiff  in  this  case  sued  the  defendant  for 
i65.,  the  price  of  a  horse  and  a  cow  sold  and  delivered. 

The  defendant  admitted  that  he  agreed  to  purchase  a  horse  and  a 
cow,  but  alleged  that  they  were  not  sold  or  purchased  together  at 
f65.,  but  under  two  separate  and  distinct  contracts.  There  was  con- 
flicting evidence  as  to  this  part  of  the  defence ;  but,  upon  the  argument 
before  me  (there  having  been  no  finding  of  the  jury  upon  the  point), 
it  was  agreed  that  I  should  decide  the  question ;  and  I  found  for  the 
defendant,  that  there  were  two  separate  and  distinct  contracts,  the 
horse  being  to  be  sold  for  £40.,  and  the  cow  for  £25.  The  latter 
amount  was  paid  into  court ;  and  no  question  remains  for  decision  ex- 
cept that  arising  upon  the  defendant's  answer  to  the  plaintiff's  demand 
so  far  as  the  price  of  the  horse  was  concerned.  This  answer  as  set 
out  in  the  statement  of  defense  was  as  follows :  "The  price  of  the 
said  horse  was  £40.,  and  the  plaintiff  warranted  it  sound  and  well, 
and  it  was  sold  to  the  defendant  on  the  terms  that,  if  it  did  not  an- 
swer the  said  warranty  or  suit  the.  defendant,  the  defendant  should  be 
at  liberty  to  reject  the  same.  The  said  horse  was  neither  sound  nor 
well  at  the  time  of  the  sale  to  the  defendant,  but  was  suffering  from 
internal  inflammation,  and  in  consequence  of  such  unsoundness  and 
illness,  it  died  before  a  reasonable  time  in  which  to  return  the  same 
had  elapsed.  The  defendant,  on  discovery  of  the  unsoundness,  re- 
pudiated the  contract,  and  gave  notice  thereof  to  the  plaintiff." 

The  jury  found  that  there  was  no  warranty  of  soundness,  and  that 
the  horse  was  in  fact  sound  at  the  time  when  the  bargain  was  made. 
But  the  defendant's  counsel  at  the  trial  relied  not  only  on  a  warranty, 
but  upon  evidence  that  the  plaintiff,  at  the  time  of  the  bargain  being 
made,  had  agreed  that  the  defendant  might  take  the  horse  away  and 
work  him,  and,  if  he  did  not  suit  the  defendant  by  working  in  every 
kind  of  vehicle  for  which  the  defendant  required  him,  the  defendant 
might  return  him  within  eight  days,  and  that,  if  the  horse  was  satis- 
factory, the  defendant  should  pay  for  him  at  that  time,  viz.  at  the 
end  of  the  eight  days.  The  bargain  having  taken  place  on  Thursday, 
the  31st  of  July,  the  horse  died  on  Sunday,  the  3d  of  August,  in  the 
defendant's  stable,  to  which  he  had  been  removed  on  the  31st  of  July. 
Under  these  circumstances,  the   defendant's  counsel  contended   that 

1*  The  statement  of  facts  is  omitted. 


Sec.  3)  "sale  or  return"  and  "sale  on  approval"  39 

the  defendant  was  not  liable,  because  the  bargain  was  a  conditional 
one,  and,  the  sale  not  having  become  absolute  before  the  death  of  the 
horse,  an  action  for  goods  sold  and  delivered  would  not  lie. 

It  was  objected,  for  the  plaintiff,  that  no  such  case  ought  to  be  left 
to  the  jury,  because  it  was  not  raised  by  the  statement  of  defence. 
But  I  was  of  opinion  that  this  defence  was  one  included  in  the  state- 
ment of  defence;  that  the  pleadings  might  properly  be  amended  if 
necessary,  but  that  it  was  not  necessary  to  amend  them ;  and  that  no 
injustice  would  be  done  by  leaving  the  question  to  the  jury.  I  there- 
fore left  it  to  the  jury  as  follows:  "Was  the  bargain  on  the  31st  of 
July  one  for  a  sale  out  and  out,  or  only  for  a  sale  conditional  on  the 
defendant  finding  the  horse  all  right  at  the  end  of  the  eight  days?" 
The  jury  found,  in  answer  to  that  question,  "that  the  bargain  was  con- 
ditional on  the  horse  being  right  and  with  a  trial  for  eight  days." 
Being  doubtful  what  the  jury  meant  by  "right,"  I  asked  them  the 
question;  to  which  they  replied,  "Suitable  for  the  defendant's  pur- 
poses, not  contemplating  the  case  of  death."  They  afterwards  added, 
in  answer  to  a  further  question,  "But  for  the  complaint  which  came 
on  after  the  bargain,  we  see  no  reason  to  suppose  that  the  horse  would 
not  have  been  suitable  for  the  defendant's  purposes ;  by  trial,  we  mean 
a  trial  as  regards  suitability,  not  as  regards  health."  Taking  all  these 
findings  together,  I  think  they  amount  to  a  finding  that  the  plaintiff 
sold  the  horse  to  the  defendant  upon  a  condition  that  the  horse  should 
be  taken  away  by  the  defendant  and  tried  by  him  for  eight  days,  and 
returned  at  the  end  of  eight  days  if  the  defendant  did  not  think  it 
suitable  for  his  purposes. 

The  horse  having  died  without  fault  of  either  party,  the  question 
is,  whether  the  plaintiff  can  maintain  his  action  for  goods  sold  and 
delivered.     I  am  of  opinion  that  he  cannot. 

The  case  of  Ellis  v.  Mortimer,  1  N.  R.  257,  shews  that  the  defend- 
ant had  the  whole  time  allowed  for  the  trial  in  which  to  decide  wheth- 
er he  would  return  the  horse  or  not.  I  think  it  clear  that  no  action 
for  goods  sold  and  delivered  would  have  lain  at  any  time  before  the 
eight  days  had  expired,  in  case  the  horse  had  lived.  But  before  the 
eight  days  had  expired  the  horse  died.  If  the  defendant  were  to  be 
fixed  with  the  price  of  the  horse,  he  would  be  compelled  to  pay  for 
something  different  from  what  he  had  bargained  for,  viz.  a  horse  of 
which  he  should  have  had  eight  days'  trial.  The  finding  that  the 
horse  might  or  probably  would  have  suited  the  defendant's  purposes 
does  not  appear  to  me  to  be  sufficient  reason  for  fixing  the  defendant 
as  the  absolute  owner  of  the  horse.  The  option  was  his  at  the  mo- 
ment of  the  horse's  death,  and  down  to  a  later  period  if  the  horse  had 
lived. 

The  case  of  Rugg  v.  Minett,  11  East,  210,  which  was  relied  upon 
for  the  plaintiff,  does  not  appear  to  me  to  apply,  because  that  was  not 
a  case  in  which  the  buyer  of  the  goods  which  were  destroyed  had  any 
option  as  to  whether  he  should  become  the  purchaser  or  not,  but,  at 


A 


40  "sale  or  return"  and  "sale  on  approval"  (Ch.  2 

the  time  of  the  destruction  of  the  goods,  he  had  by  virtue  of  the  bar- 
gain and  of  what  had  passed  become  the  absolute  owner  of  the  goods 
in  respect  of  which  he  was  held  liable.  Nor,  in  my  opinion,  does  the 
dictum  of  Coleridge,  J.,  in  Moss  v.  Sweet,  16  O.  B.  495,  which  was 
relied  upon  for  the  plaintiff,  help  the  plaintiff's  contention  in  this  case. 
That  was  a  case  in  which,  the  defendant  having  taken  delivery  of 
goods  "on  sale  or  return,"  and  having  kept  the  goods,  it  was  held 
that  the  sale  was  complete  if  the  goods  had  not  been  returned  within 
a  reasonable  time,  and  that  the  common  count  for  goods  sold  and  de- 
livered would  suffice.  Coleridge,  J.,  in  that  case  says :  "The  goods 
in  question  passed  on  condition  that,  unless  returned,  that  is,  at  the 
option  of  the  buyer,  within  a  reasonable  time,  they  were  to  be  taken 
as  sold  to  him.  That  condition  was  at  an  end  after  the  lapse  of  a 
reasonable  time  without  a  return  of  the  goods ;  and  the  sale  was  then 
complete."  He  does  not  say  that  it  was  complete  before  that  time. 
He  does  go  on  to  say:  "The  same  consequence  would  follow  where 
goods  are  destroyed  or  irijured,  so  that  a  return  within  the  meaning  of 
the  contract  becomes  impossible."  This  was  relied  upon  as  referring 
to  an  accidental  destruction,  such  as  by  death  or  fire.  I  think  it  clear 
that  this  was  not  the  meaning,  but  that  the  learned  judge  referred 
to  destruction  of  or  injury  to  the  goods  being  the  act  of  the  defend- 
ant, in  which  case  of  course  the  defendant  would  have  been  liable  as 
much  as  if  he  had  kept  them  an  unreasonable  time. 

The  case  of  Head  v.  Tattersall,  Law  Rep.  7  Ex.  7,  is  nearer  to  the 
present  case.  That  was  an  action  for  money  received,  to  recover 
back  the  price  of  a  horse  which  had  been  sold  at  Tattersall's  with  a 
warranty  and  a  condition  that  the  plaintiff  was  to  be  at  liberty  to  re- 
turn the  horse,  if  it  did  not  answer  the  description,  up  to  the  fol- 
lowing Wednesday.  The  horse  was  injured  on  its  way  home,  and 
depreciated  in  value,  but  without  any  fault  of  the  plaintiff's  servant, 
who  was  taking  it  home.  The  horse,  being  found  not  to  correspond 
with  the  warranty,  was  returned  within  the  time;  and  it  was  held 
that  the  plaintiff  had  a  right  to  return  it  and  recover  back  the  price, 
notwithstanding  that  he  \yas  unable  to  return  it  in  the  same  condition. 
It  was  attempted  to  distinguish  that  case  from  the  present,  on  the 
ground  that  there  was  a  right  to  return  the  horse  on  a  specific  ground, 
on  which  it  was  in  fact  returned.  But  I  can  see  no  dift"erence  in  prin- 
ciple between  such  a  case  and  the  case  in  which  the  purchaser  has  an 
option  to  return  the  horse  on  any  ground  still  remaining  to  him  at 
the  time  at  which  the  event  occurs  which  renders  it  impossible  for  him 
to  exercise  that  option,  and  so  to  have  the  w^iole  benefit  of  his  bar- 
gain. In  such  a  case,  I  think  the  sale  to  him  cannot  be  considered  to 
be  absolute  at  the  time  of  the  accident  occurring.  The  maxim  of  "ne 
perit  domino"  applies,  I  think,  in  such  a  case  much  more  reasonably 
as  against  the  unpaid  contingent  vendor  than  as  against  the  possible 
vendee  still  having  an  option  to  return  at  the  end  of  a  period  not  yet 
expired.     I  think  the  law  relating  to  such  a  case  is  accurately  stated 


Sec.  3)  "sale  or  return"  and  "sale  on  approval"  41 

Dy  Mr.  Benjamin  in  p.  483  of  the  2nd  edition  of  his  work  on  Sales, 
where  he  lays  it  down  as  follows,  speaking  of  "sales  on  trial,"  or  "sales 
on  approval,"  in  which  cases,  he  says,  "There  is  no  sale  until  the  ap-  y^ 
proval  is  given  either  expressly  or  by  implication,  resulting  from ' 
keeping  the  goods  beyond  the  time  allowed  for  trial."  Here,  I  think, 
there  was  no  sale  at  the  time  of  the  horse's  death,  which  happened 
without  the  fault  of  either  party,  and  therefore  that  the  action  for 
goods  sold  and  delivered  must  fail ;  and  I  give  judgment  for  the  de- 
fendant, except  so  far  as  relates  to  the  costs  of  and  occasioned  by  the 
allegations  of  warranty  and  unsoundness,  which  costs  I  order  to  be 
paid  by  the  defendant, — such  costs  to  be  set  off  against  the  defend- 
ant's costs,  on  taxation. 

Judgment  for  the  defendant. 


FOLEY  V.  FELRATH. 

(Supreme  Coiu-t  of  Alabama,  1892.     98  Ala.  176,   1.3  South.  485,  .39  Am.   St. 

Rep.  39.) 

Haralson,  J.  Foley  sued  Felrath  for  $502.56  for  merchandise, 
goods,  and  chattels  sold  by  him  to  said  Felrath  on  the  1st  of  August, 
1892,  and  on  open  account  and  on  account  stated  for  like  amounts. 

It  was  claimed  by  the  plaintiff,  and  he  so  testified,  that  he  was  a 
manufacturer  of  gold  pens  in  New  York  city ;  that  on  the  8th  March, 
1892,  he  was  in  Mobile,  Ala.,  and  while  there  was  in  the  store  of  de- 
fendant, and  sold  to  him  a  bill  of  goods  in  his  line  for  $502.56;  that 
the  goods  were  accordingly  shipped  to  the  defendant  by  plaintiff  by 
the  Adams  Express  Company,  for  which  said  company  gave  him  a 
receipt;  that  at  the  time  of  the  sale  its  terms  and  details  were  writ- 
ten down  by  plaintiff,  one-half  to  be  secured  by  defendant's  note  at 
four  months,  and  one-half  at  six  months ;  the  last  note,  if  all  the 
goods  were  not  sold  in  that  time,  might  be  paid  in  goods  not  sold,  at 
defendant's  option ;  that  the  sale  was  absolute,  and  not  conditional ; 
that  defendant,  after  he  received  the  goods,  notified  him  that  he  had 
returned  them  by  the  express  company,  and  afterwards  the  company 
brought  the  box  of  goods  to  plaintiff,  and  he  would  not  receive  them, 
because  they  were  defendant's. 

The  defendant  contradicted  this  evidence  of  the  plaintiff,  and  testi- 
fied that  plaintiff  came  into  his  store,  and,  representing  himself  as 
a  large  manufacturer  of  gold  pens  and  novelties  in  that  line,  asked 
him  to  take  the  agency  for  him  for  the  sale  of  his  goods  in  Mobile, 
and,  as  the  result  of  their  interview,  defendant  agreed  to  accept  the 
agency,  and  that  plaintiff  should  ship  him,  as  such  agent,  $500  worth 
of  his  goods  for  sale ;  that  plaintiff  represented  that  such  goods  should 
be  "good  sellers,"  and  told  defendant  that  he  would  not  be  required  to 
pay  out  any  of  his  own  money  for  the  goods,  and  plaintiff'  was  to  send 


42  "sale  or  return"  and  "sale  on  approval"  (Ch.  2 

out,  at  his  own  expense,  private  letters  and  cards,  the  printing  to  be 
paid  for  by  defendant;  that  he  agreed  to  take  the  agency,  provided 
the  goods  shipped  were  as  represented,  and  he  was  to  pay  no  money; 
that  plaintiff  said  that  he  could  not  let  his  goods  go  on  four  months' 
time  unless  defendant  would  give  him  a  note  which  he  could  use  as 
collateral  to  borrow  money,  and,  on  the  assurance  that  defendant 
would  not  have  to  pay  the  note,  for  the  reason  that  before  it  matured 
he  would  have  sold  goods  enough  to  meet  it,  he  gave  him  a  note  for 
$250,  not  as  purchase  money,  but  as  accommodation,  and  plaintiff 
was  to  send  the  goods  for  examination  before  he  would  accept  them ; 
that  they  were  to  be  such  as  would  be  salable  in  the  Mobile  market; 
that  the  goods  afterwards  came  by  express,  according  to  invoice  sent 
with  them,  but  were  immediately  returned  to  plaintiff,  because  not 
such  as  were  promised  to  be  sent,  and  were  old  style  and  unsalable. 

A  correspondence  immediately  sprang  up  between  them,  in  which 
the  one  tontended  there  was  an  absolute  sale,  and  he  would  not  re- 
ceive the  goods  back,  but  would  hold  the  other  responsible  for  their 
value,  and  the  other  that  the  transaction  was  not  a  sale,  but  an  agency, 
and  he  would  have  nothing  more  to  do  with  the  goods,  and  would 
not  pay  for  them. 

Finally,  however,  as  the  result  of  this  correspondence,  the  defend- 
ant wrote  to  the  plaintiff,  under  date  of  April  21,  1892,  to  the  follow- 
ing effect :  "I  have  reconsidered  the  matter,  and  will  accept  the  goods 
on  condition  that  you  exchange  some  high-priced  goods,  which  I  will 
return,  for  cheaper  articles,  more  suitable  for  this  market.  Please 
favor  me  with  the  retail  selling  price  of  said  line  of  goods  in  the 
north.  I  do  not  understand  the  invoice  you  sent  me,  and  therefore 
would  like  for  you  to  send  me  another,  more  explicit,  giving  the  net 
retail  price,  and  then  allow  me  the  discount;  also,  send  the  show- 
case, as  promised.     Let  goods  come  along." 

To  this  letter  the  plaintiff,  on  April  25th,  after  it  was  received,  re- 
plied: "Thanks.  Had  much  trouble,  but  all  right  now.  Have  sent 
you  show  case,  and  have  told  express  company  to  deliver  your  goods. 
]\lost  are  marked,  and  you  will  find  retail  prices  in  this  green  circu- 
lar, as  sold  by  dealers  here.  You  can  exchange  goods  at  any  time. 
I  was  careful  to  send  only  good  sellers,  and,  if  not,  will  make  all  to 
your  satisfaction.  I  will  go  on  mailing  private  letters  as  soon  as  I 
get  answer  to  this.  Open  up  goods  at  once,  and  pat  out  big  pen,  and 
push  sales,  and  send  me  this  note,  and  let  us  be  good  friends." 

The  evidence  tends  to  show  that  the  goods  were  shipped  back  to 
defendant  by  the  express  company,  as  requested  by  him,  and  in  transit 
were  lost  or  destroyed  in  a  wreck.  The  defendant  contends  that  the 
loss  is  the  plaintiff's,  that  there  was  no  delivery  of  the  goods,  for  the 
reason  that  before  accepting  them  he  had  the  right  to  select  from  the 
lot  such  as  he  would  return,  according  to  the  condition  annexed  to 
his  agreement  for  them  to  be  returned  to  him,  and  the  sale,  till  this 


Sec.  3)  "sale  or  return"  and  "sale  on  approval"  43 

was  done,  was  incomplete.  On  the  other  hand,  the  plaintiff  maintains 
that  the  sale  and  delivery  were  complete,  and  the  defendant  is  liable 
for  the  price  of  the  goods,  and  must  himself  look  to  the  express  com- 
pany for  damages,  if  it  has  incurred  liability  for  the  nondelivery  of 
the  package. 

The  evidence  tends  to  show,  and  it  is  without  conflict  as  to  the 
point,  that  the  same  package  of  goods,  and  the  same  goods  that  had 
in  the  first  place  been  shipped  to  the  defendant  at  Mobile  by  the  plain- 
tiff, which  he  received  and  examined,  the  invoice  and  prices  for  which 
had  been  furnished  to  him  by  plaintiff,  and  which  he  returned  to  plain- 
tiff as  not  coming  up  to  representations,  were  the  identical  package 
and  goods  which  defendant,  upon  reconsideration,  instructed  the  plain- 
tiff' to  have  returned  to  him  by  the  express  company.  There  was  no 
mistake  as  to  identity,  quality,  and  price  of  goods.  There  had  been, 
as  we  have  seen,  a  spirited  dispute  between  the  parties  as  to  the  char- 
acter of  the  transaction  between  them ;  the  plaintiff  maintaining  all 
the  while  that  defendant  had  purchased  the  goods,  and  that  they  were 
his  property.  The  defendant  finally  yielded  to  plaintiff's  contention, 
and  wrote :  "I  have  reconsidered  the  matter,  and  will  accept  the  goods 
on  condition  that  you  exchange  some  high-priced  goods,  which  I  will 
return,  for  cheaper  articles,  more  suitable  for  this  market."  What 
was  it  defendant  had  reconsidered?  It  could  have  been  nothing  but 
the  very  thing  the  plaintiff  had  been  so  pertinaciously  pressing  on  him, 
— that  the  goods  were  sold  and  delivered  to  him,  that  the  transaction 
was  no  agency,  and  he  was  liable,  and  must  pay  for  what  he  had 
bought.  He  yielded  the  contention,  and  said,  "I  will  accept  the  goods. 
*     *     *     Let  goods  come  along." 

A  sale  has  been  defined  to  be  "a.  transfer  of  the  absolute  or  general 
property  in  a  thing  for  a  price  in  money."  Benj.  Sales,  §  1.  If  any- 
thing remains  to  be  done  by  either  party  to  the  transaction  before  de- 
livery, as,  for  example,  to  determine  the  price,  quantity,  or  identity 
of  the  thing  sold,  the  title  does  not  vest  in  the  purchaser,  and  the  con- 
tract is  merely  executory.  If  the  sale  is  complete,  and  the  goods  per- 
ish without  the  fault  of  the  seller,  the  purchaser  is  bound  to  pay  the 
agreed  price.  Alagee  v.  Billingsley,  3  Ala.  679;  Mobile  Sav.  Bank 
V.  Fry,  69  Ala.  348;  s.  c,  75  Ala.  473;  Allen,  Bethune  &  Co.  v. 
Maury  &  Co.,  66  Ala.  17;  Wailes  v.  Howison,  93  Ala.  375,  9  South. 
594;  Cleveland  v.  Wilhams,  29  Tex.  204,  94  Am.  Dec.  274;  2  Kent, 
Comm.  496. 

In  Allen,  Bethune  &  Co.  v.  Maury  &  Co.,  supra,  we  said:  "Where, 
however,  goods  are  sold  and  delivered,  the  terms  of  sale  being  speci- 
fied, and  the  vendee  reserves  the  right  to  reject  or  return,  the  title 
passes,  liable  to  be  divested  by  the  exercise  of  this  option  to  rescind, 
expressed  within  a  reasonable  time." 

In  Greene  v.  Lewis,  85  Ala.  221,  4  South.  740,  7  Am.  St.  Rep.  42, 
it  was  held  that  where  a  horse  was  sold  and  delivered  to  a  purchaser 


»-" 


44  "cash  sale"  (Ch. 2 

for  a  reasonable  price,  to  be  afterwards  agreed  on,  the  title  at  once 
passed,  and  the  fact  that  the  parties  could  not  afterwards  agree  on  a 
reasonable  price  made  no  difference  in  the  character  of  the  transaction. 
The  court,  in  passing  upon  the  question,  stated :  "The  rule  is  settled 
that  the  title  to  personal  property  may  pass  to  a  vendee  without  fixing 
y^an  ab'iolute  price,  if  the  circumstances  attending  the  transaction  satis- 
factorily show  such  to  be  the  clear  intention  of  the  contracting  par- 
ties." Shealy  v.  Edwards,  73  Ala.  175,  49  Am.  Rep.  43;  Wilkinson 
V.  Williamson,  76  Ala.  163.  An  option  to  purchase,  if  the  party  to 
whom  the  goods  are  transferred  should  like,  is  very  different  from 

/an  option  to  return  the  goods  if  he  should  not  like,  them.  In  the  first 
case,  the  title  will  not  pass  until  the  transferee  determines  the  option, 
if  seasonably  exercised;  in  the  other,  the  title  passes  subject  to  the 
right  to  rescind  and  return,  which  is,  in  effect,  a  right  to  resell  to  his 
vendor.  2  Benj.  Sales,  p.  796,  §  915,  note  30;  Buswell  v.  Bicknell, 
17  Me.  344,  35  Am.  Dec.  262;  Hunt  v.  Wyman,  100  ^lass.  198.  The 
case  in  hand  was  clearly  one  of  a  sale  with  right  to  rescind  and  re- 
turn as  to  the  high-priced  goods. 

The  contract  of  sale  between  the  parties,  as  we  have  seen,  rested 
at  first  in  parol,  about  the  terms  of  which  they  disputed.  They  eventu- 
ally agreed  upon  its  terms,  and  that  agreement  is  in  writing.  There 
could  no  longer  remain  any  dispute  about  it,  and  no  parol  evidence 
was  needed  to  construe  it.  Its  construction  became  a  question  of  law 
for  the  court,  and  not  for  the  jury,  to  determine.  Jones  v.  Pullen, 
66  Ala.  306;  Claghorn  v.  Lingo,  62  Ala.  230;  Bernstein  v.  Humes, 
60  Ala.  582,  31  Am.  Rep.  52;   Guilmartin  v.  Wood,  76  Ala.  209. 

It  is  unnecessary  for  us,  in  the  view  we  take  of  the  case,  to  consider 
any  of  the  charges  given  to  which  exceptions  were  reserved,  or  any 
of  the  assignments  of  error,  except  the  one  based  on  the  request  for 
the  general  charge  in  favor  of  the  plaintiff.  The  evidence  is  undis- 
puted and  in  writing  as  to  what  the  contract  was,  and,  as  its  proper 
construction  makes  it  one  of  sale  and  delivery  of  goods,  the  court 
should  have  given  the  general  charge  for  the  plaintiff",  as  requested. 

Reversed  and  remanded. 


SECTION  4.— "CASH  SALE" 


LEVEN  v.  SMITH. 

(Supreme  Court  of  New  York,  1845.     1  Denio,  571.) 

Error  to  the  Kings  common  pleas,  where  Smith  &  Hartshorne 
brought  replevin  in  the  detinet  against  Leven  for  a  quantity  of  boots 
and  shoes.     Plea,  non  detinet. 

On  the  trial,  the  plaintiffs  proved  that  on  the  18th  day  of  Janu- 
ary, 1845,  the  defendant,  who  kept  a  store  in  Brooklyn,  called  at  their 


Sec.  4,)  "cash  sale"  45 

store  in  the  same  city  and  agreed  to  purchase  of  them  a  bill  of  boots 
and  shoes,  which  he  selected,  amounting  to  $184.25,  to  be  paid  for 
in  cash  on  the  delivery  at  the  defendant's  store.  Lattimer,  a  person 
in  the  employ  of  the  plaintiffs,  and  instructed  by  them  to  deliver  the 
goods  on  payment  of  the  money,  and  not  otherwise,  packed  them  in 
boxes  and  took  them  to  the  defendant's  store,  where  they  were  com- 
pared with  the  bill  and  found  to  be  correct,  and  then  the  defendant 
offered  Lattimer  eight  dollars  in  money  and  a  note  of  the  plaintiffs 
payable  to  the  order  of  Young  &  Shultz,  and  by  them  endorsed  in 
blank  for  $176.23,  on  which  some  interest  had  accrued,  in  payment 
of  the  goods.  Lattimer  refused  to  receive  the  money  and  note  as 
payment,  but  proposed  to  go  back  and  see  Mr.  Smith,  one  of  the 
plaintiffs,  on  the  subject,  and  receive  his  directions.  He  accordingly 
immediately  went  and  consulted  Smith,  who  declined  to  receive  pay- 
ment in  that  way,  and  directed  him  to  go  and  bring  back  the  goods. 
He  then  went  directly  to  the  defendant's  store,  not  having  been  absent 
from  it  more  than  four  or  five  minutes,  and  required  the  goods  to 
be  returned  or  the  money  paid ;  but  the  defendant  refused  to  pay  or 
to  give  up  the  goods.  Lattimer  left  the  note  on  the  defendant's  desk 
on  the  same  day,  but  not  until  after  the  service  of  the  replevin,  and 
he  left  the  money  there  two  days  afterwards. 

The  defendant  moved  for  a  nonsuit,  which  was  denied,  and  he  ex- 
cepted. Some  evidence  tending  to  vary  in  unimportant  particulars 
the  case  made  by  the  plaintiffs  was  given  by  the  defendant;  and  upon 
his  resting  the  plaintiffs  gave  evidence  tending  to  prove  that  the  de- 
fendant obtained  the  note  referred  to,  of  Young  &  Shultz,  under  an 
understanding  that  he  was  to  pay  the  amount  if  he  obtained  the  goods 
upon  it,  otherwise  he  was  to  return  it. 

Several  objections  were  made  to  the  admission  and  rejection  of 
testimony,  and  the  defendant  excepted  to  the  ruling  of  the  court  upon 
these  objections  in  several  instances,  which,  however,  present  no  ques- 
tions of  general  interest. 

The  court  charged  the  jury,  that  if  the  goods  were  sold  for  cash, 
to  be  paid  for  on  delivery,  the  sale  was  conditional  and  the  property 
did  not  pass  until  the  condition  was  complied  with;  and  also,  that  if 
the  note  was  in  fact  obtained  from  Young  &  Shultz  under  such  agree- 
ment as  is  above  mentioned,  the  plaintiffs  would  for  that  reason  be 
entitled  to  recover.  The  defendant's  counsel  excepted  to  the  charge, 
and  likewise  presented  several  propositions  according  to  which  he  de- 
sired that  it  might  be  modified ;  but  the  court  declined  to  charge  as 
requested,  and  the  defendant  excepted.  The  jury  found  a  verdict  for 
the  plaintiffs,  upon  which  the  court  rendered  judgment.  A  bill  of  ex- 
ceptions was  duly  signed. 

Jewett,  J.  The  goods  in  question  were  sold  by  the  plaintiff's  to  the 
defendant  for  cash,  to  be  paid  on  delivery.  Payment  and  delivery  were 
to  have  been  simultaneous.     No  credit  was  given,  and  there  is  no  evi- 


46  "cash  sale"  (Ch.2 

dence  that  the  delivery  to  the  defendant  was  intended  to  be  absolute, 
or  that  the  condition  of  payment  was  waived ;  and  the  mere  handing 
over  the  goods  under  the  expectation  of  immediate  payment,  did  not 
/constitute  an  absolute  delivery.  The  defendant,  after  such  delivery^ 
[held  the  goods  in  trust  for  the  plaintiffs  until  payment  was  made  or 
jwaived.  Haggerty  v.  Palmer,  6  John.  Ch.  (N.  Y.)  437;  2  Kent's 
Com.  Lect.  39;  Whitwell  v.  Vincent,  4  Pick.  (Mass.)  449,  16  Am. 
Dec.  355;  Furniss  v.  Hone,  8  Wend.  (N.  Y.)  247;  Russell  v.  Minor, 
22  Wend.  (N.  Y.)  659;  Acker  v.  Campbell,  23  Wend.  (N.  Y.)  372. 
The  defendant  having  got  the  goods  into  his  possession,  refused  to 
pay  cash  for  them  as  he  had  agreed  to  do.  The  plaintiffs  demanded 
them  of  him  and  he  refused  to  deliver  them  up,  upon  which  this  action 
was  brought.     I  think  it  is  well  sustained. 

The  questions  arising  on  the  trial  respecting  the  admission  and  re- 
jection of  evidence  were  correctly  determined  by  the  court.  The 
charge,  so  far  as  it  lays  down  the  principles  of  law  applicable  to  such 
a  sale  as  that  which  was  proved,  was  substantially  correct. 

In  regard  to  the  eff'ect  of  obtaining  the  note  in  the  manner  men- 
tioned, the  charge  was  not  strictly  correct,  but  it  embraced  a  subject 
not  in  the  case.  It  was  quite  immaterial  whether  the  defendant  was 
the  ow^ner  of  the  note,  or  was  the  agent  of  Young  &  Shultz  in  making 
an  experiment  to  obtain  payment  for  them.  The  charge  in  that  par- 
ticular was  entirely  harmless,  and  forms  no  ground  for  a  writ  of 
error.  Hayden  v.  Palmer,  2  Hill  (N.  Y.)  205 ;  People  v.  Wiley,  3 
Hill  (N.  Y.)  214. 

The  request  for  further  instructions  to  the  jury  was  properly  denied. 
The  propositions  submitted  were  either  merely  speculative  or  obviously 
incorrect. 

Judgment  affirmed. 


CLARK  V.  GREELEY. 

(Supreme  Court  of  New   Hampshire,  1SS2.     62  N.   H.  394.) 

Assumpsit,  to  recover  for  goods  sold.  Facts  found  by  a  referee. 
The  plaintiff  made  an  auction  in  April,  1880,  at  which  the  defendant 
bid  oft'  the  property  named  in  the  specification  at  the  prices  therein 
designated.  He  has  never  paid  for  the  same,  nor  taken  the  property 
away.  The  defendant  claimed  that  the  plaintiff  was  owing  him  about 
$50  for  some  wood.  This  claim  the  plaintiff  denies.  At  a  previous 
auction  of  the  plaintiff",  in  the  fall  of  1879,  the  defendant  bid  off  some 
property  of  less  amount  and  value  than  the  amount  of  his  claim 
against  the  plaintiff",  for  which  he  has  never  paid,  claiming  that  he  had 
the  right  to  set  it  off  as  a  payment  by  her  pro  tanto  of  his  claim 
against  her.  The  plaintiff  was  and  is  a  person  in  good  credit,  and 
able  to  pay  her  debts.  The  defendant  went  to  the  auction  in  April, 
for  the  purpose  of  buying  property  to  satisfy  his  claim  against  the 


Sec.  4)  "cash  sale"  4T 

plaintiff.  The  auctioneer  set  up  the  property  at  auction,  previously 
stating,  in  the  defendant's  presence,  that  the  property  was  to  be  sold 
for  cash  down,  as  the  plaintiff  was  about  to  leave  town.  The  stove 
was  sold  with  the  reservation  that  it  was  to  remain  in  the  house  a 
rew  days  for  the  use  of  the  plaintiff's  family.  The  defendant,  having 
his  account  book  with  him,  went  into  the  house  immediately  after 
the  sale  and  told  the  plaintiff  he  was  ready  to  settle  his  account. 
She  said  the  terms  of  the  auction  were  cash  down,  and  she  was  going 
to  have  the  money  for  the  articles  he  had  bought.  The  defendant 
refused  to  pay  for  them,  but  claimed  the  right  to  take  away  the  prop- 
erty. He  then  went  out,  intending  to  take  away  the  carriage  and 
sleighs,  but  could  not  find  them.  The  defendant  is  a  person  in  good 
credit,  and  able  to  pay  his  bills.  The  next  morning  the  defendant 
learned  that  the  property  which  he  had  bid  off  had  since  been  attached 
on  two  writs  against  the  plaintiff.  He  then  brought  a  suit  upon  his 
previous  claim  against  the  plaintiff,  and  attached  the  property  which 
he  had  bid  off  at  the  auction,  his  attachment  being  made  and  returned 
subject  to  the  two  prior  attachments.  The  three  writs  against  the 
plaintiff  are  still  pending.  The  court  ordered  judgment  on  the  report 
for  the  defendant,  and  the  plaintiff  excepted. 

Clark,  J.  To  maintain  an  action  for  goods  bargained  and  sold,  the 
contract  of  sale  must  be  so  far  completed  as  to  vest  the  title  in  thei 
buyer.  As  between  the  parties,  delivery  is  not  essential  to  a  completed  I 
sale,  except  when  required  by  the  statute  of  frauds.  As  a  general  rule,! 
under  a  contract  of  sale  of  specific  chattels  at  a  stipulated  price,  v/hen 
nothing  remains  to  be  done  to  designate  the  property  sold  or  the  price 
to  be  paid,  the  title,  independently  of  the  statute  of  frauds,  immedi- 
ately vests  in  the  buyer,  and  a  right  to  the  price  in  the  seller,  unless 
it  jan  be  shown  that  such  was  not  the  intention  of  the  parties.  Clark 
V.  Draper,  19  N.  H.  419,  421;  Bailey  v.  Smith,  43  N.  H.  141,  143;. 
Townsend  v.  Hargraves,  118  Mass.  325,  332;  Phillips  v.  Aloor,  71 
Me.  78;  Dixon  v.  Yates,  5  B.  &  Ad.  313,  340.  Although  the  title 
passes  so  as  to  subject  the  buyer  to  the  risk  of  future  injury  to  the 
property,  the  right  of  possession  does  not  pass  but  is  dependent  upon 
the  payment  of  the  price.  In  the  absence  of  any  agreement,  payment 
and  delivery  are  to  be  concurrent  acts,  and  the  seller  has  the  right 
to  retain  the  possession  until  the  price  is  paid.  Upon  proof  of  a 
readiness  to  deliver  the  goods  the  seller  may  maintain  an  action  for 
the  price,  and  upon  a  tender  of  the  price  the  buyer  may  maintain  an 
action  for  the  goods. 

A  sale  of  chattels  may  be  conditional.     The  payment  of  the  pricel 
may  be  made  a  condition  precedent  to  the  transfer  of  the  title,  and! 
in  such  a  case  the  property  will  not  pass  although  the  goods  are  de- ' 
livered.     A  sale  for  cash  is  not  necessarily  a  conditional  sale.     Scud- 
der  V.  Bradbury,  106  Mass.  422.    The  phrases  "terms  cash"  and  "cash 
down"  may  or  may  not  import  that  payment  of  the  price  is  made 


48  "cash  sale"  (Ch. 2 

a  condition  precedent  to  the  transfer  of  the  title,  according  to  the  in- 
tent of  the  parties.  If  by  the  use  of  these  terms  the  parties  understand 
merely  that  no  credit  is  to  be  given,  and  that  the  seller  will  insist 
on  liis  right  to  retain  the  possession  of  the  goods  until  the  payment 
of  the  price,  the  sale  is  still  so  far  completed  and  absolute  that  the 
property  passes ;  but  if  it  is  understood  that  the  goods  are  to  remain 
the  property  of  the  seller  until  the  price  is  paid,  the  sale  is  condi- 
tional and  the  title  does  not  pass. 

In  the  present  case  the  sale  was  by  auction  and  the  terms  were 
"cash  down."  When  the  auctioneer's  hammer  fell  nothing  remained 
to  be  done  to  designate  the  property  sold  or  to  put  it  in  condition  for 
delivery,  and  the  title  passed  immediately  to  the  defendant  unless  the 
parties  intended  otherwise.  The  question  of  intention  is  one  of  fact, 
which  the  referee  has  determined  by  his  general  finding  in  favor  of 
the  plaintiff.  If  a  formal  offer  to  deliver  the  goods  would  ordinarily 
be  required  before  an  action  for  the  price  could  be  maintained,  the 
absolute  refusal  of  the  defendant  to  pay  rendered  an  offer  unnecessary 
in  this  case  (Haines  v.  Tucker,  50  N.  H.  307) ;  and  if  no  other  facts 
appeared,  the  plaintiff'  would  be  entitled  to  judgment.  It  must  appear 
not  only  that  the  plaintiff'  was  ready  to  deliver  the  property  upon 
payment  of  the  price  when  her  suit  was  commenced,  but  that  she  is 
still  ready  to  deliver  it,  or  is  in  no  fault  for  not  being  able  to  do  so. 
She  is  warrantor  of  the  title,  and  if  the  title  fails  she  cannot  recover 
the  price.  The  case  finds  that  the  goods  bid  off'  by  the  defendant  were 
attached  by  the  creditors  of  the  plaintiff'.  If  the  attachment  put  it 
out  of  her  power  to  deliver  the  goods,  she  cannot  recover  in  this  ac- 
tion ;  if  she  could,  the  defendant  could  immediately  recover  it  back 
of  the  plaintiff  as  warrantor.  It  is  suggested  that  this  question  does 
not  arise  in  respect  to  the  stove.  If  the  case  is  amended  to  show  that 
fact,  the  exceptions  must  be  sustained  as  to  the  stove  and  overruled 
as  to  the  other  articles. 

Case  discharged. 

Stanley,  J.,  did  not  sit;   the  others  concurred.^' 


STONE  V.  PERRY. 

(Supreme   Judicial   Court  of   Maine,    1S72.     60   ^le.    4S.) 

Replevin  for  one  hundred  barrels  of  flour,  which  the  defendant 
as  sheriff'  of  this  county  had  attached  as  the  property  of  Alonzo  But- 
ler, of  Portland. 

It  appeared,  on  the  part  of  plaintiffs,  that  on  July  5,  1871,  a  broker 
called  at  plaintiffs'  place  of  business  in  Boston,  and  inquired  the  price 
per  barrel  of  one  hundred  barrels  of  flour  of  a  certain  brand;  plain- 
is  But  see  Hand  v.  Matthews,  208  Pa.  149,  57  Atl.  351  (1904). 


Sec.  4)  "cash  sale"  49 

tiffs  asked  whom  it  was  for,  and  the  broker  replied,  Butler,  of  Port- 
land ;  plaintiff  said  he  did  not  know  him,  but  would  sell  the  flour  at 
$8.75  for  cash ;  that  he  went  away,  and  soon  returned,  and  said  he 
would  take  the  flour;  that  the  flour  was  shipped  to  A.  Butler  &  Co., 
on  Friday,  July  7th ;  that  on  the  next  day  plaintiffs  forwarded  to  A. 
Butler  &  Co.,  a  bill  of  the  flour,  with  the  words  "terms  cash"  printed 
on  the  margin  thereof ;  that  on  the  following  Monday,  one  of  the 
plaintiffs  went  to  Portland,  and  ascertaining  that  A.  Butler  &  Co. 
had  failed,  and  that  the  flour  had  been  attached  by  one  of  the  previous 
debtors  of  Butler,  replevied  it  from  the  officer. 

It  also  appeared  that  under  the  custom  and  usage  of  trade  in  Bos- 
ton, when  flour  is  sold  for  cash,  it  means  that  the  seller  has  the  right 
to  call  for  the  pay  at  any  time  he  pleases,  but  the  custom  is  not  to 
call  until  ten  days ;  that  there  is  no  credit  in  the  flour  business  un- 
less the  time  is  specified ;  that  ten  days  is  a  courtesy  and  not  a  right, 
and  is  so  defined  in  the  rules  of  exchange. 

On  the  part  of  the  defense  it  appeared  that  the  broker  offered 
plaintiffs  for  Butler  $8.75,  and  if  he  did  not  remit  in  ten  days  to  draw 
at  sight,  and  not  on  demand;  and  that  plaintiffs  said  they  would  ship 
the  first  one  hundred  barrels  they  received. 

The  full  court,  to  render  such  judgment  as  the  legal  rights  of  the 
parties  required. 

AppIvETon,  C.  J.  The  plaintiffs,  merchants  in  Boston,  through 
the  intervention  of  a  broker,  on  July  5,  1871,  sold  to  A.  Butler  &  Co., 
one  hundred  barrels  of  flour,  which  they  shipped  on  Friday,  the  7th 
July.  The  sale  was  for  cash.  The  bill  of  goods,  which  was  forward- 
ed on  8th  July,  had  on  the  margin  the  words,  "terms  cash."  On 
Monday,  one  of  the  plaintiffs  went  to  Portland,  and,  finding  the  firm 
of  Butler  &  Co.  had  failed,  and  that  the  flour  had  been  attached,  com- 
menced an  action  of  replevin. 

The  sale  to  Butler  &  Co.  was  conditional.  The  condition  has  not  I 
been  complied  with.  The  attaching  creditor  can  only  acquire  the 
right  of  his  debtor.  As  between  vendor  and  vendee,  the  vendor  is 
to  be  deemed  the  owner.  In  Deshon  v.  Bigelow,  8  Gray  (Mass.)  159, 
the  sale  was  for  cash,  and  being  conditional,  it  was  held  that  the  title 
did  not  pass  to  the  vendee  until  payment,  although  the  goods  sold 
were  delivered  to  the  vendee.  So  when  goods  are  sold  on  time,  and 
delivered  the  vendee,  it  being  part  of  the  contract  that  they  are  to  be 
paid  for  by  the  negotiable  note  of  the  vendee,  such  payment  is  a  con- 
dition precedent  to  the  sale,  and  the  title  to  the  goods  will  not  vest 
without  such  payment  or  a  waiver  of  it.  Whitney  v.  Eaton,  15  Gray 
(Mass.)  225;  Farlow  v.  Ellis,  15  Gray  (Mass.)  229;  in  pirschorn  v. 
Canney,  98  Mass.  149,  a  merchant  in  New  York  sold  goods  to  a  mer- 
chant in  Boston,  on  condition  that  he  should  send  his  notes  in  payment 
therefor,  and  shipped  the  goods  to  Boston,  mailing  a  bill  of  lading  to 
the  vendee,  and  requesting  him  to  send  his  notes  in  payment,  wiiich 
Wood  w.  Sales — i 


50  "cash  sale"  (Ch.  2 

was  never  done.  It  was  held,  that  no  title  passed  to  the  conditional 
vendee.  "The  sale  to  the  defendants,"  observes  Gray,  J.,  in  Adams 
V.  O'Connor,  100  Alass.  515,  1  Am.  Rep.  137,  "having  been  found  by 
the  jury  to  have  been  for  cash,  was  a  conditional  sale,  and  vested  no 
title  in  the  purchasers,  until  the  terms  of  sale  had  been  complied 
with." 

If  goods  are  sold  conditionally,  and  delivery  made  according  to 
•the  custom  of  the  trade,  before  the  conditions  are  complied  with,  in 
jexpectation  of  compliance,  the  delivery  is  also  conditional,  and  no  title 
/vests  in  the  purchaser  until  performance  of  the  condition;  and  if  he 
I  steadily  refuse  compliance,  the  seller  may  recover  the  goods  by  action 
'of  replevin.     Bauendahl  v.  Horr,  7  Blatchf.  548,  Fed.  Cas.  No.  1,113. 

The  contract  was  made  in  Massachusetts,  and  the  law  of  that  place 
must  govern.  By  that  law,  the  sale  being  upon  the  condition  of  pay- 
ment in  cash  upon  delivery,  no  payment  being  made,  the  title  of  the 
vendor  remains  as  between  him  and  his  vendee,  or  as  between  him  and 
the  attaching  creditors  of  the  vendee,  in  the  former.  The  plaintiffs 
never  parted  with  their  title  in  Massachusetts,  and  their  vendee  has 
not  acquired  any. 

There  has  been  no  waiver,  nor  is  there  any  proof  tending  to  show 
a  waiver  on  the  part  of  the  plaintiffs,  of  any  of  their  legal  rights.  On 
the  contrary,  they  have  been  vigilant  in  their  enforcement.  The  fact 
that  the  goods  were  actually  forwarded  to  the  purchaser  before  a 
compliance  with  the  terms  of  sale  is  not  necessarily  a  waiver  of  the 
conditions  of  sale.  Farlow  v.  Ellis.  Whether  a  delivery  under  an 
agreement  for  the  sale  of  chattels  is  absolute  or  conditional,  depends 
upon  the  intent  of  the  parties ;  to  establish  that  the  delivery  was  con- 
ditional, it  is  not  necessary  that  the  vendor  should  declare  the  condi- 
tions in  express  terms,  at  the  time  of  delivery.  It  is  sufficient,  if  the 
intent  of  the  parties  can  be  inferred  from  their  acts  or  the  circum- 
stances of  the  case.  Hammett  v.  Linneman,  48  N.  Y.  399. 
/  The  defendant  having  wrongfully  interfered  with  the  property  of 
the  plaintiffs,  is  liable  in  tort  for  such  interference  without  demand. 

Judgment  for  plaintiffs,  and  one  cent  damage. 

Kent,  Walton,  Dicke;rson,  and  Danforth,  JJ.,  concurred. 


GEORGE  W.  MERRILL  FURNITURE  CO.  v.  HILL. 

(Supreme  Judicial  Court  of  IMaine,  1894.     87  Me.  17,  32  Atl.  712.) 

WiswEi^L,  J.^^  On  about  March  20,  1891,  one  Coburn,  then  the 
proprietor  of  an  fiotel  in  Bangor,  ordered  of  the  plaintiff's  two  settees, 
the  property  replevied,  the  same  to  be  manufactured  by  the  plaintiffs. 
On  the  25th  of  April  following,  the  settees,  having  been  completed, 

16  Tlie  statement  of  facts  is  omitted. 


Sec.  4;)  "cash  sale"  51 

were  delivered  at  the  hotel  occupied  by  Coburn,  Between  that  time 
and  the  19th  of  the  following  June  the  plaintiffs  called  upon  Coburn 
at  various  times  for  the  purpose  of  collecting  the  pay  for  these  arti- 
cles, and  on  the  latter  date,  nothing  having  been  paid  up  to  that  time, 
and  Coburn  being  still  unable  to  pay,  one  of  the  plaintiffs  proposed 
that  Coburn  should  sign  the  written  instrument,  called  by  the  wit- 
nesses a  "lease,"  but  in  fact  a  contract  providing  that  Coburn  should 
pay  the  plaintiffs  $10  per  month  for  the  use  of  the  articles  until  the 
sum  of  $51  was  paid,  when  the  sums  so  paid  should  be  treated  as 
purchase  money,  and  the  property  pass  to  Coburn.  This  instrument 
was  never  recorded. 

In  the  month  of  September  following,  the  defendant  bought  these 
settees,  with  other  hotel  furnishings,  of  Coburn,  without  notice  of  any 
claim  upon  them  of  the  plaintiffs.  The  plaintiffs  brought  this  action 
of  replevin  to  recover  possession  of  these  settees. 

The  presiding  justice  instructed  the  jury  that  the  question  was  prin- 
cipally, if  not  altogether,  of  law,  and  at  the  close  of  the  charge  said : 
"If  you  believe  the  testimony,  I  do  not  see  any  other  way  but  to  give 
a  verdict  for  the  plaintiffs."  An  examination  of  the  evidence  will 
show  that  this  was  in  effect  a  direction  to  return  a  verdict  for  the 
plaintiffs. 

At  the  time  the  goods  were  ordered,  nothing  was  said  about  the 
time  of  payment,  and  no  agreement  was  made  by  the  plaintiffs  to  give 
credit.  Under  these  circumstances,  the  law  presumes  that  the  par- 
ties intended  to  make  the  payment  of  the  price  and  the  delivery  of 
the  possession  concurrent  conditions.  The  plaintiffs  would  have  had 
the  right  to  retain  possession  until  the  purchaser  had  been  ready  to 
perform  his  part  of  the  contract,  or,  if  the  goods  had  been  delivered 
with  the  expectation  of  immediate  payment,  and  this  had  not  been 
done,  the  plaintiffs  had  the  right  to  retake  possession  of  the  goods. 

But  although  a  sale  of  this  character  is  conditional,  and  a  vendor 
has  the  right  to  retain  possession,  or  to  retake  possession  under  cer- 
tain circumstances,  the  vendor  may  waive  the  conditions  and  these 
rights,  in  which  case  the  sale  becomes  absolute,  and  the  title  vests  in 
the  purchaser,     Peabody  v.  Maguire,  79  Me.  572,  12  Atl.  630. 

The  mere  fact  of  delivery  without  a  performance  of  the  condition 
of  payment  is  some  evidence  of  a  waiver  of  the  condition.  The  rule 
that  prevails  in  this  state  is  thus  stated  in  Peabody  v.  Maguire,  supra : 
"But  the  doctrine  which  has  the  support  of  our  own  court  upon  this 
question,  and  which  seems  to  be  the  correct  and  rational  one,  is  that, 
even  in  a  conditional  sale,  the  mere  fact  of  delivery,  without  a  per-, 
formance  by  the  purchaser  of  the  terms  and  conditions  of  sale,  andj 
without  anything  being  said  about  the  condition,  although  it  may  af-j 
ford  presumptive  evidence  of  an  absolute  delivery  and  of  a  waiver  off 
the  condition,  yet  it  may  be  controlled  and  explained,  and  is  not  nec^ 
essarily  an  absolute  delivery  or  waiver  of  the  condition ;  but  whethei"! 
so  or  not  is  a  question  of  fact  to  be  ascertained  from  the  testimony." 


62  "cash  sale"  (Ch.2 

In  this  case  there  was  a  delivery  of  the  goods  "without  a  perform- 
ance by  the  purchaser  of  the  terms  and  conditions  of  sale,  and  with- 
out anything  being  said  about  the  condition."  This  was  some  evi- 
dence of  a  waiver  by  the  plaintiffs  of  their  rights.  It  might  be  con- 
trolled or  explained  by  other  circumstances,  but  we  think  that  it  was 
a  question  for  the  jury,  and  that  it  was  error  to  direct,  in  effect,  a  ver- 
dict for  the  plaintiffs. 

If  the  evidence  was  such  that  a  verdict  for  the  defendant  would 
have  been  so  clearly  erroneous  as  to  require  it  to  be  set  aside,  then 
the  defendant  could  not  complain  of  the  instruction ;  but  we  do  not 
think  that  such  is  the  case.  There  are  undoubtedly  circumstances 
which  have  some  bearing  in  favor  of  the  contention  on  each  side.  For 
instance,  one  of  the  plaintiff's,  and  the  one  who  had  most  to  do  with 
the  transaction,  testified  upon  cross-examination  that  when  the  goods 
were  delivered  he  considered  Mr.  Coburn  good,  and  "expected  the 
cash  in  thirty  days."  From  this  evidence,  taken  in  connection  with 
the  unrestricted  delivery,  the  jury  would  have  been  authorized  in  find- 
ing a  waiver. 

If  the  pr.operty  passed  by  delivery,  then  the  unrecorded  instrument 
executed  upon  June  19th,  but  bearing  date  of  April  25th,  was  ineffec- 
tual to  give  the  plaintiffs  any  claim  upon  these  goods  as  against  the 
defendant.  Upon  the  other  hand,  if  the  title  did  not  pass,  the  par- 
ties merely  substituted  one  conditional  contract  for  another,  as  they 
might  with  propriety  have  done.  So  the  case  depends  entirely  upon 
the  question  of  fact  as  to  whether  or  not  the  property  passed  at  the 
time  of  delivery.  This  issue,  we  think,  should  have  been  submitted 
to  the  jury. 

Exceptions  sustained. 


FRECH  V.  LEWIS. 

(Supreme  Court  of  Pennsylvania,  1907.     218  Pa.  141,  67  Atl.  45,  11  L.  R.  A. 
[N.  S.]  948,  120  Am.  St.  Rep.  864,  11  Ann.  Cas.  545.) 

Stewart,  J.  The  settled  doctrine  of  our  cases  is  to  the  effect  that 
where  the  contract  of  sale  provides  for  payment  of  the  purchase  price 
on  delivery  of  the  articles  sold,  and  the  seller  delivers  the  goods,  but 
the  buyer  fails  to  pay,  the  right  of  property  does  not  pass  to  the  buyer 
with  the  possession,  but  remains  with  the  seller,  who  may  at  his  op- 
tion reclaim  the  goods.  In  some  jurisdictions  the  right  of  property 
is  held  to  pass  with  the  delivery,  unless  at  the  time  the  right  to  re- 
take is  expressly  declared  by  the  seller.  We  have  not  gone  so  far. 
Our  cases  proceed  on  the  theory  that  until  payment  has  been  made, 
or  waived,  the  contract  remains  executory,  and  that  delivery  in  such 
case  is  not  a  completion  of  the  contract,  except  as  an  intention  to  so 
regard  it  is  expressly  declared  or  can  fairly  be  inferred  from  the  cir- 
cumstances attending.     Possession,  however,  having  passed,  and  the 


I 


Sec.  4)  "cash  sale"  53 

buyer  by  the  act  of  the  seller  having  been  invested  with  the  indicia 
of  ownership,  the  policy  of  our  law  requires  that  this  situation — the 
possession  in  one  and  the  right  of  property  in  another — shall  continue 
no  longer  than  is  necessary  to  enable  the  seller  to  recover  the  goods 
with  which  he  has  parted.  The  law  gives  the  seller  the  right  inj 
such  case  to  reclaim  his  goods,  but  he  must  do  so  promptly.  Other- 
wise he  will  be  held  to  have  waived  his  right,  and  can  only  thereafte 
look  to  the  buyer  for  the  price. 

The  question  the  present  case  suggests  is :  When  does  this  infer- 
ence of  waiver  arise?  Our  authorities  admit  of  but  one  answer; 
Except  when  delayed  by  trick  or  artifice,  the  assertion  of  the  right  to 
reclaim  the  property  must  follow  immediately  upon  the  buyer's  de- 
fault. This  does  not  mean  that  the  seller  must  eo  instanti  begin  legal 
proceedings  to  recover  the  goods ;  but  it  does  mean  that  the  seller, 
when  he  discovers  that  his  delivery  is  not  followed  by  payment,  as 
he  had  the  right  to  expect,  is  at  once  put  to  his  election  whether  he 
will  waive  the  condition  as  to  payment  and  allow  the  delivery  to  be- 
come absolute,  or  retake  property,  and  that  he  is  to  allow  no  unneces- 
sary delay  in  making  his  choice.  The  object  of  the  law  is  not  to  mul- 
tiply his  remedies  because  of  his  disappointment.  He  may  not  con- 
tinue to  hold  his  right  to  the  goods,  and  at  the  same  time  hold  the 
buyer  as  his  creditor.  One  or  the  other  he  must  relinquish,  and  do  it 
promptly,  or  the  law  will  forfeit  his  right  to  elect.  Continued  ac- 
quiescence in  the  buyer's  possession  of  the  goods  will  be  taken  as  a 
choice  on  his  part  to  regard  the  delivery  as  absolute,  notwithstanding 
the  buyer's  default.  The  policy  of  the  law,  in  requiring  promptitude 
in  the  assertion  of  continued  ownership  of  the  goods,  could  easily  be 
vindicated  were  it  necessary.  It  answers  every  purpose  here  to  show 
that  the  law  requires  it. 

In  Leedom  v.  Philips,  1  Yeates  (Pa.)  527,  it  is  said:  "When  the 
parties  specially  agree,  it  is  obvious  that  the  vendor  may,  by  his  con- 
tract, renounce  the  benefit  of  the  conditions  stipulated,  and  trust  to 
the  good  faith  of  the  vendee  for  a  future  performance  on  his  part.  If 
one  sells  goods  for  cash,  and  the  vendee  takes  them  away  without  pay- 
ment of  the  money,  the  vendor  should  immediately  reclaim  them  by 
pursuing  the  party,  and  he  may  justify  the  retaking  of  them  by  force." 
This  was  quoted  approvingly  in  Bowen  et  al.  v.  Burk,  13  Pa.  146; 
and  it  was  there  added  that :  "Where  he  [the  seller]  lies  by,  and 
makes  no  complaint  in  a  reasonable  time,  he  consents  to  the  absolute 
transfer  of  the  property,  and  the  contract  is  consequently  complete 
against  all  the  world." 

In  Backentoss  v.  Speicher,  31  Pa.  324,  reference  is  made  to  the  case 
last  above  cited.  What  we  have  quoted  from  it  was  there  approved, 
and  the  necessity  for  an  immediate  reclamation  of  the  goods  was  em- 
phasized. It  is  there  said :  "This  is  the  principle  that  is  decisive 
against  the  present  plaintifif.  A  sale  of  goods  for  cash  is,  strictly 
speaking,  a  sale  on  condition.     The  contract  is  do  ut  des.     The  con- 


54  "cash  sale"  (Ch.  2 

dition  is  more  imperative  than  such  as  was  in  this  case,  but  for  that 
reason  less  easily  waived ;  and  yet,  if  the  vendor  acquiesced  in  a  pos- 
session obtained  in  disregard  of  the  condition,  he  waives  it,  and, 
though  he  may  recover  the  price  by  action,  he  cannot  recover  the 
goods  in  specie.  *  *  *  When  the  plaintiff  found  his  condition 
disregarded,  he  should  have  promptly  reclaimed  the  goods." 

Mackaness  v.  Long,  85  Pa.  158,  is  another  recognition  of  the  same 
doctrine  that  unless  reclamation  of  the  property  be  made  immediately 
the  title  passes  to  the  buyer.  These  cases  and  others  that  might  be 
cited,  following  the  lead  of  Leedom  v.  Philips,  1  Yeates  (Pa.)  527, 
all  hold  that  the  duty  is  upon  the  seller  if  he  would  retain  his  right 
to  the  property  to  proceed  promptly,  and  we  know  of  no  case  in  which 
a  contrary  doctrine  is  asserted.  In  some  cases,  the  expression  "with- 
in a  reasonable  time"  is  used  where  the  right  to  reclaim  is  referred 
to ;  but  this  expression  suggests  no  departure  from  the  rule  as  declared 
in  Leedom  v.  Philips,  supra.  By  "reasonable  time"  is  to  be  under- 
stood such  promptitude  as  the  situation  of  the  parties  and  the  circum- 
stances of  the  case  wnll  allow.  It  never  means  an  indulgence  in 
unnecessary  delay,  or  in  a  delay  occasioned  by  the  vain  hope  and  fruit- 
less effort  to  obtain  the  money  from  the  defaulting  buyer.  When  the 
delay  is  to  be  accounted  for  by  the  latter  consideration,  it  is  accepted 
as  an  acquiescence  in  the  delivery  and  the  acceptance  of  the  buyer  as 
a  debtor. 

Now  for  the  facts  of  this  case :  The  contract  was  that  plaintiff  was 
to  furnish  defendant  with  two  carriages  to  be  paid  for  on  delivery. 
The  first  carriage  was  delivered  September  4,  1903,  through  plain- 
tiff's son,  who  immediately  demanded  of  the  defendant  payment  for 
the  same.  Defendant's  response  was:  "I  will  be  over  in  a  day  or 
two  to  see  your  father,  and,  if  I  do  not,  I  will  send  him  a  check  in 
the  course  of  a  day  or  two."  He  failed  to  keep  his  promise.  He 
neither  went  to  see  plaintiff",  nor  did  he  send  the  check.  Nevertheless, 
three  days  after  this  the  other  wagon  was  delivered  to  him  at  the 
same  place,  while  he  was  absent  from  home.  A  week  or  ten  days 
thereafter  the  plaintiff  demanded  payment,  and  repeated  the  demand 
both  personally  and  by  letter  time  and  time  again,  with  no  better 
result  than  to  get  a  note  from  the  defendant,  which  he  accepted  con- 
ditionally, but  which  he  returned  because  he  was  unable  to  get  it  dis- 
counted. IMeanwhile  defendant  was  using  the  carriages,  as  plaintiff 
must  have  known,  since  he  repaired  one  of  them  which  had  been 
injured  in  the  using.  While  plaintiff  was  diligent  and  persistent  in 
demanding  payment,  at  no  time  did  he  demand  a  return  of  the  car- 
riages, or  in  any  way  assert  his  right  to  property  in  them.  His  effort 
was,  as  he  himself  testified,  to  coax  the  defendant  into  paying  the 
price.  Two  months  and  a  half  elapsed  before  he  began  this  action 
of  replevin,  which  was  his  first  assertion  of  continued  ownership  of 
the  property.  It  was  not  only  too  late,  but  his  conduct  shows  that 
durino-  all  this  time  he  was  dealing  with  the  defendant  as  though  the 


Sec.  4)  "cash  sale"  55 

latter  was  his  debtor.  His  own  explanation  is  that  he  delayed  trust- 
ing to  the  promises  of  the  defendant  from  time  to  time  to  pay  the 
price  of  the  carriages. 

The  title  to  a  chattel  passes  as  fully  after  a  conditional  delivery, 
where  possession  is  allowed  to  be  retained,  in  consideration  of  a  new 
promise  to  pay,  as  where  delivery  is  preceded  by  actual  payment.  The 
plaintiff  was  not  tricked  into  delivering  the  carriages  to  the  defend- 
ant, nor  was  his  delay  in  asserting  claim  to  the  property  in  conse- 
quence of  any  fraud  practiced.  He  reposed  confidence  in  the  promise 
of  the  defendant,  and  was  disappointed.  His  disappointment  does  not 
restore  to  him  the  right  of  property  with  which  he  parted.  The  court 
below  submitted  it  to  the  jury  to  determine  whether  plaintiff  by  his 
conduct  had  waived  his  right  to  retake  the  carriages.  The  jury  found 
he  had  not,  and  gave  the  plaintiff  a  verdict  for  the  property.  On 
appeal  to  the  superior  court  the  judgment  of  the  lower  court  was  af- 
firmed. The  ground  on  which  the  affirmance  rested  is  thus  stated 
by  the  learned  judge  who  delivered  the  opinion:  'Tt  cannot  be  said 
as  matter  of  law  that  the  plaintiff's  conduct  amounted  to  a  waiver  of 
his  right.  In  view  of  the  repeated  promises  of  the  defendant,  the 
plaintiff"  might  well  have  been  misled  and  induced  to  postpone  proceed- 
ings for  the  recovery  of  his  property.  His  delay  is  evidence  of  a 
waiver,  but  it  is  not  conclusive  in  view  of  the  conduct  of  the  defend- 
ant." 

In  this  we  cannot  concur.  The  reasons  for  our  dissent  fully  ap- 
pear in  what  we  have  already  said.  Reliance  upon  a  subsequent 
promise  to  pay,  that  leads  the  seller  to  refrain  from  asserting  his 
right  to  retake  the  property,  is  in  itself  a  waiver  of  the  right,  and! 
makes  absolute  a  delivery  which  in  the  first  instance  was  conditional.! 
The  right  of  plaintiff  to  recover  back  his  property  after  he  had  deliv- 
ered it  resulted  from  the  buyer's  failure  to  keep  his  first  promise.  His 
failure  to  keep  subsequent  promises  to  pay  could  neither  prolong  nor 
revive  that  right.  What  defendant  did  or  did  not  do  is  a  matter  that 
has  no  place  in  the  inquiry;  what  the  plaintiff  did  or  failed  to  do  is 
the  determining  consideration.  Fraud  and  artifice  practiced  by  de- 
fendant may  excuse  delay  in  attempting  a  recovery  of  property  after 
delivery,  but  not  mistaken  confidence  reposed  in  defendant's  promises. 

Judgment  is  reversed. ^^ 

17  Compare  Hammett  v.  Linneman,  48  N.  Y.  399  (1872).  And  see,  further, 
on  the  subject  of  waiver,  Johnson  v.  lankovetz.  57  Or.  28,  110  Pac.  398,  29 
L.  R.  A.  (N.  S.)  709  (1910),  with  a  criticism  in  9  Mich.  Law  Rev.  289. 


56         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  2 


SECTION  5.— CONTRACT  TO  SELL  UNASCERTAINED 
GOODS  OF  A  FUNGIBLE  NATURE 


WHITEHOUSE  et  al.  v.  FROST. 
(Court  of  King's  Bench,  ISIO.     12  East,  614.) 

In  trover  to  recover  the  value  of  some  oil,  the  property  of  the  bank- 
rupt, which  was  tried  at  Lancaster,  in  March  last,  a  verdict  was  found 
for  the  plaintiffs  for  £390,  subject  to  the  opinion  of  the  court  on  the 
following  case : 

The  plaintiffs  are  assignees  of  John  Townsend,  late  a  merchant  at 
Liverpool ;  the  two  Frosts  are  merchants  and  partners  in  Liverpool ; 
and  the  other  defendants,  Dutton  &  Bancroft,  are  also  merchants  and 
partners  in  the  same  town.  On  the  7th  of  February,  1809,  Townsend 
purchased  from  the  defendants,  J.  &  L.  Frost,  ten  tons  of  oil,  at 
£39  per  ton,  amounting  to  £390,  for  which  Townsend  was  to  give 
his  acceptance  payable  four  months  after  date ;  and  a  bill  of  parcels 
was  rendered  to  Townsend  by  the  Frosts,  a  copy  of  which  is  as  fol- 
lows : 

"Liverpool,  7th  February,  1809.     Islv.  John  Townsend,  Bought  of 

J.  &  L.  Frost, 

Ten  tons  Greenland  whale  oil  in  Mr.  Staniforth's  cisterns,  at  your  risk, 

at   £39 £390 

Cr. 
1S09.     February  14.     By   acceptance £390 

"For  J.  &  L.  F.,  Wm.  Pemberton." 

The  said  ten  tons  of  oil  at  the  time  of  this  purchase  were  part  of 
forty  tons  of  oil  lying  in  one  of  the  cisterns  in  the  oil-house  at  Liver- 
.  pool,  the  key  of  which  cistern  was  in  the  custody  of  the  other  de- 
fendants, Dutton  &  Bancroft,  who  had  before  that  time  purchased 
from  J,  R.  &  J.  Freme,  of  Liverpool,  merchants,  the  said  forty  tons 
of  oil  in  the  same  cistern ;  and  upon  such  purchase  received  from  the 
Fremes  the  key  of  the  cistern.  Afterwards  Dutton  &  Brancroft  sold 
ten  of  the  forty  tons  they  had  so  bought  (being  the  ten  tons  in  ques- 
don)  to  the  defendants,  the  Frosts,  who  sold  the  same  in  the  manner 
before  stated  to  Townsend.  On  the  7th  of  February,  the  day  on 
which  Townsend  bought  the  ten  tons  of  oil,  he  received  from  the 
defendants.  Frosts,  an  order  on  Dutton  &  Bancroft,  who  held  the  key 
of  such  cistern,  they  having  other  interests  therein  as  aforesaid,  to 
deliver  to  him,  Townsend,  the  said  ten  tons  of  oil;  a  copy  of  which 
is  as  follows : 

"Messrs.  Dutton  &  Bancroft,  Please  to  deliver  the  bearer,  j\Ir.  John 
Townsend,  ten  tons  Greenland  whale  oil,  we  purchased  from  you  8th 
November  last."     (Signed)  "J.  &  L.  Frost." 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  57 

The  order  was  taken  to  Button  &  Bancroft  by  Townsend,  and  ac- 
cepted by  them  upon  the  face  of  the  order  as  f ohows :  "1809.  Ac- 
cepted, 14th  February.  Button  &  Bancroft."  Townsend  according  to 
the  terms  of  the  bill  of  parcels,  namely,  on  the  14th  of  February,  1809, 
gave  to  the  defendants.  Frosts,  his  acceptance  for  the  amount  of  the 
oil,  payable  four  months  after  date ;  but  which  acceptance  has  not 
been  paid.  Townsend  never  demanded  the  oil  from  Button  &  Ban- 
croft, who  had  the  custody  of  it.  The  oil  was  not  subject  to  any  rent; 
the  original  importer  having  paid  the  rent  for  twelve  months,  and 
sold  it  rent  free  for  that  time,  which  was  not  expired  at  Townsend's 
bankruptcy. 

On  the  23d  of  May,  1809,  about  three  months  after  the  purchase 
of  the  ten  tons  of  oil,  a  commission  of  bankrupt  issued  against  Town- 
send,  under  which  he  was  duly  declared  a  bankrupt,  and  the  plaintiffs 
appointed  his  assignees.  At  the  time  of  the  purchase,  and  also  at 
the  tim.e  of  Townsend's  being  declared  a  bankrupt,  the  oil  was  lying 
in  the  cistern  mixed  with  other  oil  in  the  same;  and  some  time  after- 
wards the  defendants  refused  to  deliver  the  same  to  the  plaintiffs, 
notwithstanding  a  demand  was  made  for  the  same  by  the  assignees, 
and  a  tender  of  any  charges  due  in  respect  thereof.  When  the  whole 
of  the  oil  lying  in  any  of  the  cisterns  in  the  oil-house  is  sold  to  one 
person,  the  purchaser  receives  the  key  of  the  cistern ;  but  when  a  small 
parcel  is  sold,  the  key  remains  with  the  original  owner;  and  the  pur- 
chaser is  charged  in  proportion  to  the  quantity  of  oil  sold,  with  rent 
for  the  same,  until  delivered  out  of  the  oil-house,  unless  such  rent  be 
paid  by  the  original  importer,  as  was  the  fact  in  the  present  case.  If 
the  plaintiffs  were  entitled  to  recover  the  verdict  was  to  stand ;  if  not, 
a  nonsuit  was  to  be  entered. 

There  was  a  similar  action  by  the  same  plaintiffs  against  J.  R. 
Freme  and  J.  Freme,  Button,  and  Bancroft,  the  circumstances  of 
which  were  in  substance  the  same. 

Lord  Ellenborough,  C.  J.  This  case  presents  a  difference  from 
the  ordinary  cases  which  have  occurred  where  the  sale  has  been  of 
chattels  in  their  nature  several,  and  where  the  transfer  of  the  prop- 
erty from  the  vendor  by  means  of  an  order  for  delivery  addressed  to 
the  wharfinger  or  other  person  in  whose  keeping  they  were,  and  ac- 
cepted by  him,  has  been  held  to  be  equivalent  to  an  actual  delivery ; 
the  goods  being  at  the  time  capable  of  being  delivered.  Here,  how- 
ever, there  is  this  distinguishing  circumstance,  that  the  ten  tons  of  oil 
till  measured  off  from  the  rest  was  not  capable  of  a  separate  deliv- 
ery; and  the  question  is,  whether  that  be  a  distinction  in  substance 
or  in  semblance  only.  The  whole  forty  tons  were  at  one  time  the 
property  of  Button  &  Bancroft,  who  had  the  key  of  the  cistern  which 
contained  them;  and  they  sold  ten  tons  to  the  Frosts,  who  sold  the 
same  to  Townsend,  the  bankrupt,  and  gave  him  at  the  same  time  an 
order  on  Button  &  Bancroft  for  the  delivery  to  him  of  the  ten  tons. 


58         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  2 

To  that  order  Button  &  Bancroft  attorn,  as  I  may  say;  for  they  ac- 
cept the  order,  by  writing  upon  it  "Accepted  14th  of  February,  1809," 
and  signing  their  names  to  it.  From  that  moment  they  became  the 
bailees  of  Townsend,  the  vendee;  the  goods  had  arrived  at  their 
journey's  end,  and  were  not  in  transitu;  all  the  right  then  of  the 
sellers  was  gone  by  the  transfer,  and  they  could  no  longer  control 
that  delivery  to  which  they  had  virtually  acceded  by  means  of  their 
order  on  Button  &  Bancroft  accepted  by  the  latter.  The  question  of 
stopping  in  transitu  does  not  arise,  taking  the  Frosts  to  be  the  original 
sellers,  as  between  them  and  the  bankrupt;  the  oil  had  never  been 
in  the  hands  of  the  Frosts;  they  only  assigned  a  right  to  it  in  the 
hands  of  the  common  bailees,  which  before  had  been  assigned  to  them. 

Grose,  J.  There  can  be  no  doubt  that  at  the  time  of  Townsend's 
bankruptcy  the  ten  tons  of  oil  in  the  cistern  were  at  the  risk  of  the 
bankrupt.  x\ll  the  delivery  which  could  take  place  between  these  par- 
ties had  taken  place.  Button  &  Bancroft,  who  had  the  custody  of  the 
whole  in  their  cistern,  had  accepted  the  order  of  the  sellers  for  the 
delivery  to  the  bankrupt,  and  it  only  remained  for  Townsend,  together 
with  Button  &  Bancroft,  to  draw  off  the  ten  tons  from  the  rest. 

Le  Blanc,  J.  Button  &  Bancroft  had  sold  the  ten  tons  of  oil  in 
question  (which  was  part  of  a  larger  quantity,  the  whole  of  which 
was  under  their  lock  and  key)  to  the  Frosts,  who  sold  the  same  to 
Townsend ;  and  there  is  no  claim  on  the  part  of  the  defendants,  But- 
ton &  Bancroft,  to  detain  the  oil  for  warehouse  rent.  The  Frosts 
never  had  any  other  possession  of  the  oil  than  through  Button  &  Ban- 
croft; but  they  gave  to  Townsend  an  order  on  these  latter  to  deliver 
it  to  him ;  and  after  the  acceptance  of  that  order  Button  &  Bancroft 
held  it  for  his  use.  But  something,  it  is  said,  still  remained  to  be  done, 
namely,  the  measuring  off  of  the  ten  tons  from  the  rest  of  the  oil. 
Nothing,  however,  remained  to  be  done  in  order  to  complete  the  sale. 
The  objection  only  applies  where  something  remains  to  be  done  as 
between  the  buyer  and  seller,  or  for  the  purpose  of  ascertaining  either 
the  quantity  or  the  price,  neither  of  which  remained  to  be  done  in 
this  case ;  for  it  was  admitted  by  the  persons  who  were  to  make  the 
delivery  to  Townsend,  that  the  quantity  mentioned  in  the  order  was 
in  the  cistern  in  their  custody,'  for  they  had  before  sold  that  quantity 
to  the  Frosts,  of  whom  Townsend  purchased  it,  and  had  received  the 
price.  Therefore,  though  something  remained  to  be  done  as  between 
the  vendee  and  the  persons  who  retained  the  custody  of  the  oil,  be- 
fore the  vendee  could  be  put  into  separate  possession  of  the  part  sold, 
yet  as  between  him  and  his  vendors  nothing  remained  to  perfect  the 
sale. 

Bayley,  J.  There  is  no  question  of  transitus  here ;  the  goods  were 
at  their  journey's  end.  When,  therefore,  Button  &  Bancroft,  who 
were  then  the  owners  of  the  whole,  sold  ten  tons  of  the  oil  to  the 
Frosts,  those  ten  tons  became  the  property  of  the  Frosts;   and  when 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE 


59 


they  sold  the  same  to  Townscnd,  and  gave  him  an  order  upon  Button 
&  Bancroft  for  the  deHvery  of  the  ten  tons  purchased  of  them,  the 
efifect  of  that  order  was  to  direct  Button  &  Bancroft  to  consider  as  the 
property  of  Townsend  the  ten  tons  in  their  possession,  which  before 
was  considered  as  the  property  of  the  Frosts ;  and  by  the  acceptance 
of  that  order  Button  &  Bancroft  admitted  that  they  held  the  ten  tons 
for  Townsend,  as  his  property;  and  he  had  a  right  to  go  and  take 
it,  without  the  interference  of  the  Frosts. 
Postea  to  the  plaintiffs.^ ^ 


KNIGHTS  V.  WIFFEN. 

(Court  of  Queen's  Bench,  1S70.     L.  R.  5  Q.  B.  6fi0.) 

Beclaration  for  conversion  of  sixty  quarters  of  barley  of  the  plain- 
tiff. 

Pleas:  1.  Not  guilty.  2.  That  the  barley  was  not  the  property 
of  the  plaintiff. 

Issue  thereon. 

At  the  trial  before  Keating,  J.,  at  the  Surrey  Spring  Assizes,  it  ap- 
peared that  the  defendant,  a  corn-merchant,  had  a  large  quantity  of 
barley,  in  sacks,  lying  in  his  granary,  which  adjoined  the  Stanstead 
Station  of  the  Great  Eastern  Railway.  He  sold  eighty  quarters  of 
this  barley  to  one  Maris,  but  no  particular  sacks  were  appropriated 
to  the  purchaser.  While  the  barley  remained  in  the  defendant's 
granary,  subject  to  the  orders  of  Maris,  the  latter  sold  sixty  quarters 
of  it  to  the  plaintiff,  who  paid  him  for  them,  and  received  from  him 
the  following  delivery  order  addressed,  as  was  usual  in  similar  trans- 
actions, to  the  "Station-Master,  Stanstead — Sir:  Beliver  Mr.  T. 
Knights  sixty  quarters  of  barley  to  my  order,  R.  W.  Maris,  Jun., 
June  27th,  1868."  Underneath  was  written:  "Thomas  Knights,  Jun., 
Hemingford  Gray,  near  St.  Ives,  Huntingdonshire."  The  plaintiff 
sent  this  document  to  the  station-master,  and  wrote  with  it:    "Sir: 

18  In  Austin  v.  Craven,  4  Taunt.  644  (1812),  where  the  sale  was  of  50  hogs- 
heads of  sugar,  double  loaves,  no  particular  hogsheads  being  specified,  Mans- 
field, C.  J.,  said:  "Trover  cannot  be  maintained  but  for  specific  goods.  Any 
sugars  of  required  quality  would  have  satisfied  this  contract.  It  is  a  con- 
tract for  a  certain  quantity  of  a  specified  quality  of  sugars.  I  say  nothing 
on  the  case  of  the  oil;  there  it  is  held  that  trover  will  lie  for  a  specific 
quantity  of  a  liquid,  mixed  with  a  certain  other  quantity  of  the  same  liquid, 
without  its  ever  having  been  separated ;  how  it  is  to  be  distinguished  from 
the  mass.  I  know  not;  but  that  case  stands  quite  on  its  own  bottom;  it  is 
unlike  other  cases." 

In  Gillett  v.  Hill,  2  Cr.  &  Mee.  5.30  (1834),  Bayley,  B.,  said:  "If  I  agree  to 
deliver  a  certain  quantity  of  oil,  as  ten  out  of  eighteen  tons,  no  one  can  say 
which  part  of  the  whole  quantity  I  have  agreed  to  deliver  until  a  selection 
is  made.     There  is  no  individuality  until  it  has  been  divided." 

In  the  fifth  English  edition  of  Benjamin  on  Sales,  p.  338,  note  4,  the  editors, 
referring  to  Whitehouse  v.  Frost,  say:  "As  it  has  been  frequently  disapproved, 
though  followed  in  America,  it  may  be  treated  as  of  no  autliority  here." 


60         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  2 

1  enclose  Mr.  R.  W.  Maris,  Jun.'s,  transfer  of  sixty  quarters  of  barley 
to  my  account.  Please  confirm  this  transfer,  and  send  me  a  sample, 
and  say  what  weight  is  in  due  course."  On  receipt  of  this  letter  and 
the  delivery  order,  the  station-master  shewed  them  both  to  the  de- 
fendant, who  said,  "All  right,  when  you  get  the  forwarding  note  I 
will  put  the  barley  on  the  line."  Samples  were  afterwards  given  to 
the  station-master,  which  were  sent  by  him  to  the  plaintifif.  Three 
sacks  were  weighed.  The  plaintiff  ultimately  gave  an  order,  or  for- 
warding note,  to  the  station-master,  for  the  sixty  quarters  of  barley 
to  be  sent  to  Cambridge,  which  he  presented  to  the  defendant,  but 
Maris  had  then  become  bankrupt,  and  the  defendant,  as  unpaid  ven- 
dor, refused  to  part  with  the  barley. 

The  learned  judge  directed  a  verdict  for  the  defendant,  giving  the 
plaintiff  leave  to  move  to  enter  a  verdict  for  £53.  18s.  7d.,  the  amount 
claimed. 

A  rule  was  obtained  pursuant  to  the  leave  reserved,  on  the  ground 
that  there  was  evidence  which  ought  to  have  been  submitted  to  the 
jury  to  prove  that  the  defendant  had  accepted,  and  agreed  to  act  upon 
the  delivery  order  of  the  vendee  (Maris),  and  thus  passed  the  property 
in  the  sixty  sacks  of  barley ;  or  for  a  new  trial  on  the  ground  that 
the  judge  ought  to  have  directed  a  verdict  for  the  plaintiff  for  three 
sacks  at  least. 

Blackburn,  J.  I  think  that  the  plaintiff  is  entitled  to  the  verdict, 
and  the  rule  should  be  made  absolute  to  enter  a  verdict  for  him.  I 
will  state  shortly  what  I  consider  to  be  the  facts  upon  which  the 
case  seems  to  turn.  The  defendant  Wift'en  had  in  his  own  warehouse 
a  large  quantity  of  barley,  and  he  sold  to  Maris  eighty  quarters  which, 
on  the  contract  between  him  and  Maris,  remained  in  his  possession 
as  unpaid  vendor.  No  particular  sacks  of  the  barley  were  appro- 
priated as  between  Maris  and  Wift'en ;  but  at  the  time  the  contract 
was  made  Maris  had  a  right  to  have  eighty  quarters  out  of  that  barley 
appropriated  to  him ;  and  at  the  same  time  Wiffen,  as  the  unpaid 
vendor,  had  a  right. to  insist  on  the  payment  of  the  price  before  any 
part  of  the  grain  was  given  up.  Maris  afterwards  entered  into  a  con- 
tract with  the  plaintiff'  Knights  by  which  he  sold  him  sixty  sacks  of 
the  barley,  and  Knights  paid  him  for  them.  A  document  was  given 
by  Maris  to  Knights,  in  the  shape  of  a  delivery  order  addressed  to 
a  station-master  of  the  Great  Eastern  Railway,  instructing  him  to  de- 
liver to  Knights'  order  sixty  quarters  of  barley  on  his.  Maris',  ac- 
count. Knights  forwarded  it  to  the  station-master,  enclosed  in  a 
letter  authorizing  the  station-master  to  hold  for  him.  The  station- 
master  went  to  \Vift'en  and  shewed  him  the  delivery  order  and  letter, 
and  Wiffen  said :  "All  right,  when  you  receive  the  forwarding  note, 
I  will  place  the  barley  on  the  line."  What  does  that  mean?  It 
amounts  to  this,  that  Maris  having  given  the  order  to  enable  Knights 
to  obtain  the  barley,  Wiffen  recognized  Knights   as  the  person  en- 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  61 

titled  to  the  possession  of  it.  Knights  had  handed  the  dehvery-order 
to  the  station-master,  and  Wiffen,  when  the  document  was  shewn  to 
him,  said,  in  effect :  "It  is  quite  right ;  I  have  sixty  quarters  of  bar- 
ley to  Maris'  order.  I  will  hold  it  for  you ;  and  when  the  forwarding 
note  comes  I  will  put  it  on  the  railway  for  you."  Upon  that  statement 
Knights  rested  assured,  and  Wift'en,  by  accepting  the  transfer  which 
had  been  informally  addressed  to  the  station-master,  bound  himself 
to  Knights.  The  latter  accordingly,  when  he  did  not  get  the  goods, 
brought  an  action  of  trover  against  Wiffen,  saying,  as  it  were :  "You 
said  that  you  had  the  sixty  quarters  of  barley,  and  that  you  would 
hold  the  goods  for  me.  You  cannot  refuse  to  deliver  to  me;  if  you 
do  refuse  it  will  be  a  conversion."  And  Wiffen  now  says :  "It  is  all 
true,  but  I  do  refuse  to  deliver  the  barley.  Granted  that  I  previously 
said  I  would  hold  sixty  quarters  of  barley  for  you,  yet  I  had  none 
to  hold  for  you.  I  had  no  quarters  belonging  to  Maris,  for  I  never 
severed  them  from  the  bulk,  and  I  am  entitled  to  hold  the  whole 
quantity  as  against  Maris,  until  I  am  paid  the  full  price." 

No  doubt  the  law  is  that  until  an  appropriation  from  a  bulk  is 
made,  so  that  the  vendor  has  said  what  portion  belongs  to  him  and 
what  portion  belongs  to  the  buyer,  the  goods  remain  in  solido,  and 
no  property  passes.  But  can  Wiffen  here  be  permitted  to  say :  "I 
never  set  aside  any  quarters?"  As  to  that,  Woodley  v.  Coventry,  2 
H.  &  C.  164,  32  L.  J.  (Ex.)  185,  is  very  much  in  point;  with  this 
difference  only,  that  there  the  plaintiff  acted  on  the  statement  of  the 
warehouseman,  and  altered  his  position  by  paying  the  vendee  a  part 
of  the  price,  and  so  the  doctrine  of  estoppel  applied ;  which  doctrine 
is — that  where  one  states  a  thing  to  another,  with  a  view  to  the 
other  altering  his  position,  or  knowing  that,  as  a  reasonable  man,  he 
will  alter  his  position,  then  the  person  to  whom  the  statement  is  made 
is  entitled  to  hold  the  other  bound,  and  the  matter  is  regulated  by  the 
state  of  facts  imported  by  the  statement.  Woodley  had  altered  his 
position  by  paying  part  of  the  price,  but  Coventry  did  not  know  of 
it.  In  Stonard  v.  Dunkin,  2  Camp.  344,  it  is  patent  that  the  defend- 
ant knew  the  money  was  paid.  In  Hawes  v.  Watson,  2  B.  &  C.  540, 
it  appears  that  payment  had  been  made,  but  the  defendant  did  not 
know  of  it,  although,  as  a  reasonable  man,  he  might  have  known  it 
was  likely.  But  in  neither  of  those  cases  did  the  defendants  know 
that  money  was  going  to  be  paid.  In  the  present  case  the  money 
had  been  paid  before  the  presentation  of  the  delivery  order;  but  I 
think,  nevertheless,  that  the  position  of  the  plaintiff  was  altered 
through  the  defendant's  conduct.  The  defendant  knew  that,  when 
he  assented  to  the  delivery  order,  the  plaintiff,  as  a  reasonable  man, 
would  rest  satisfied.  If  the  plaintiff  had  been  met  by  a  refusal  on  the 
part  of  the  defendant,  he  could  have  gone  to  Maris  and  have  de- 
manded back  his  money,  very  likely  he  might  not  have  derived  much 
benefit  if  he  had  done  so;   but  he  had  a  right  to  do  it.     The  plain- 


62         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  3 

tiff  did  rest  satisfied  in  the  belief,  as  a  reasonable  man,  that  the  prop- 
erty had  been  passed  to  him.  If  once  the  fact  is  established,  that  the 
plaintiff's  position  is  altered  by  relying  on  the  statement  and  taking 
no  steps  further,  the  case  becomes  identical  with  ^^'oodley  v.  Coventry, 
2  H.  &  C.  164,  32  L.  J.  (Ex.)  185,  and  Hawes  v.  Watson,  2  B.  &  C. 
540.  It  is  to  be  observed,  moreover,  that  the  judgment  of  the  Court 
in  Woodley  v.  Coventry,  2  H.  &  C.  164,  32  L.  J.  (Ex.)  185,  did  not 
rest  on  the  fact  of  the  payment  of  the  price.  It  will  be  noticed  there 
that  although  the  fact  did  exist  of  payment  of  price,  Martin,  B., 
seems  to  found  his  decision  on  the  assenting  to  hold,  and  the  fact  that 
when  that  assent  was  communicated  to  the  plaintiff's  they  altered 
dieir  position.  In  Gillett  v.  Hill,  2  C.  &  M.  530,  there  was  no  pay- 
ment of  the  price,  and  the  Court  of  Exchequer  gave  judgment  against 
the  wharfingers,  on  the  ground  that  they  were  estopped  from  denying 
the  facts,  after  the  other  party  had  altered  his  position,  relying  on 
their  conduct  when  the  delivery  order  was  presented.  In  the  pres- 
ent case  the  plaintiff  altered  his  position,  relying  on  the  defendant's 
conduct  when  the  delivery  order  was  presented.  The  plaintiff  may 
well  say :  "I  abstained  from  active  measures  in  consequence  of  your 
statement,  and  I  am  entitled  to  hold  you  precluded  from  denying  that 
what  you  stated  was  true."  ^^ 


SCUDDER  v.  WORSTER  et  al. 
(Supreme  Judicial  Court  of  ^Massachusetts,  1S53.     11  Cush.  573.) 

This  was  an  action  of  replevin,  for  150  barrels  of  pork,  to  which 
the  defendants  pleaded  only  the  general  issue.  It  was  submitted  to 
this  court  on  an  agreed  statement  of  facts,  w^hich,  so  far  as  necessary 
to  a  proper  understanding  of  the  points  involved,  sufficiently  appear  in 
the  opinion. 

Dewey,  J.^°  *  *  *  It  appears  from  the  facts  stated,  that  on 
February  10,  1850,  a  contract  was  made  by  the  defendants  with  Se- 
comb,  Taylor,  &  Company,  to  sell  them  250  barrels  of  pork  branded 
"Worcester  &  Hart" ;  that  a  bill  of  sale  of  the  pork  was  made  and 
delivered  to  them,  and  they  gave  the  defendants  their  negotiable  prom- 
issory notes  of  hand  therefor,  payable,  in  six  months ;  that  it  was 
further  agreed  that  the  pork  should  remain  in  defendants'  cellar  on 
storage,  at  the  risk  and  expense  of  the  purchasers ;  that  Secomb, 
Taylor,  &  Company,  on  the  13th  of  May,  1850,  sold  100  barrels  of 
tlie  pork  to  one  Lang,  who  received  the  same  of  the  defendants  upon 
the  order  of  Secomb,  Taylor,  &  Company;  that  on  the  27th  of  May, 
1850,  Secomb,  Taylor,  &  Company  sold  the  plaintiff  150  barrels,  with 

19  Concurring  opinions  were  delivered  by  Mellor  and  Lush,  JJ. 
2  0  Part  of  tlie  opinion  is  omitted. 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  63 

an  order  on  the  defendants  therefor.  The  next  day  the  plaintiff  gave 
notice  to  the  defendants  of  the  purchase,  and  requested  them  to  hold 
the  same  on  storage  for  him,  to  which  the  defendants  assented.  On 
the  25th  of  June,  Secomb,  Taylor,  &  Company  became  insolvent, 
and  on  the  same  day  the  plaintiff  called  upon  the  defendants  for  the 
purpose  of  receiving  the  150  barrels  of  pork,  but  the  defendants  re- 
fused to  allov\^  him  to  do  so.  On  the  next  day  a  more  formal  demand, 
accompanied  by  an  offer  to  pay  storage,  was  made,  which  being  re- 
fused by  the  defendants,  an  action  of  replevin  was  instituted,  and  150 
barrels  of  pork,  the  same  now  in  controversy,  were  taken  and  removed 
from  said  cellar,  and  delivered  to  the  plaintiff. 

The  further  fact  is  stated  in  the  case,  and  it  is  this  which  raises  the 
question  of  property  in  the  plaintiff',  that  the  pork  bargained  and  sold 
in  the  manner  above  stated  was  in  the  cellar  of  the  defendants,  and 
a  parcel  of  a  larger  quantity  of  the  same  brand,  and  also  with  some 
of  a  dift'erent  brand,  and  so  continued  parcel  of  a  larger  quantity  of 
similar  brand,  up  to  the  time  of  the  suing  out  of  the  plaintiff's  writ  of 
replevin :  though  this  fact  was  not  at  the  time  of  the  sale  stated  to 
the  purchasers,  or  to  the  plaintiff  when  he  purchased  of  Secomb, 
Taylor,  &  Company.  Had  these  250  barrels  of  pork  been  a  sep- 
arate parcel,  or  had  the  parties  designated  them  by  any  visible  mark, 
distinguishing  them  from  the  residue  of  the  vendors'  stock  of  pork, 
the  sale  would  clearly  have  been  an  absolute  one,  and  the  property 
would  at  once  have  passed  to  the  purchaser.  There  was  nothing  re- 
quired to  have  been  done  but  this  separation  from  the  general  mass 
of  like  kind,  to  have  placed  the  sale  beyond  all  question  or  doubt  as 
to  its  validity. 

The  cases  cited  by  the  plaintift"'s  counsel  fully  establish  the  position, 
that  what  was  done  in  this  case  would  have  transferred  the  property 
in  the  pork,  if  the  sale  had  been  of  all  the  pork  in  the  cellar,  or  of 
any  entire  parcel  separated  from  the  residue,  or  if  the  250  barrels  had 
some  descriptive  mark  distinguishing  them  from  the  other  barrels  not 
sold.  The  difficulty  in  the  case  is,  in  maintaining  that  in  the  absence 
of  each  and  all  these  circumstances,  distinguishing  the  articles  sold, 
the  particular  barrels  of  pork  selected  by  the  officer  from  the  larger 
mass  when  he  served  this  process,  were  the  property  of  the  plaintiff", 
or  had  ever  passed  to  him.  In  addition,  however,  to  the  numerous 
cases  cited  to  establish  the  general  principles  contended  for  on  the 
part  of  the  plaintiff,  and  which  would  have  been  decisive,  if  it  had 
been  a  sale  of  all  the  pork  in  the  cellar  or  a  particular  parcel,  or  cer- 
tain barrels  having  descriptive  marks  which  would  enable  the  vendee 
to  separate  his  own  from  the  residue,  were  cited  several  more  imme- 
diately bearing  upon  the  present  case,  and  where  property  not  sep- 
arable has  been  held  to  pass  to  the  vendee. 

The  leading  case  relied  upon  is  that  of  Pleasants  v.  Pendleton,  27 
Va.  475,   18  Am.  Dec.  726.     This  was  an  action  by  the  vendor  to 


64         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Cll.  2 

recover  the  price  of  119  barrels  of  flour  sold  to  the  defendant.  No 
other  objection  existed  to  the  validity  of  the  sale,  except  that  the  119 
barrels  were  a  parcel  of  123  barrels,  all  of  similar  kind,  in  the  same 
warehouse.  There  were  certain  brands  or  marks  on  the  entire  123 
barrels.  The  flour  was  destroyed  by  fire  while  on  storage,  and  the 
vendee  refused  to  pay  for  the  119,  upon  the  ground  that  the  sale 
was  not  perfected  for  want  of  separation  from  the  123  barrels.  The 
court  refused  to  sustain  the  defence,  and  gave  judgment  for  the  plain- 
tiff. In  reference  to  this  case,  Grimke,  J.,  in  Woods  v.  McGee,  7 
Ohio,  127,  pt.  2,  30  Am.  Dec.  220,  says :  "It  is  impossible  to  divest 
ourselves  of  the  impression  that  the  small  difference  between  the  ag- 
gregate mass  and  the  quantity  sold,  the  former  being  123  barrels,  and 
the  latter  119,  may  have  influenced  the  decision.  It  was  a  hard  case, 
and  hard  cases  make  shipwreck  of  principles." 

Jackson  v.  Anderson,  4  Taunt.  24,  was  an  action  of  trover  to  re- 
cover for  the  conversion  of  1969  Spanish  dollars.  It  appeared  that 
the  amount  had  been  transmitted  to  a  consignee  for  the  use  of  the 
plaintiff,  but  they  were  in  a  parcel  of  $4918,  all  of  which  came  into  the 
hands  of  the  defendant.  Among  other  points  raised  at  the  argument, 
was  this,  that  there  was  nothing  to  distinguish  the  $1969  from  the 
entire  mass ;  that  there  had  been  no  separation,  and  of  course  the 
plaintiff  had  no  property  in  any  particular  portion  of  the  money.  The 
point,  it  seems,  was  not  made  at  the  trial  before  the  jury,  but  sug- 
gested by  the  court  during  the  argument  before  the  full  court,  and 
this  is  stated  by  the  reporter;  the  court  interrupted  the  counsel,  and 
intimated  a  strong  doubt,  as  there  was  nothing  to  distinguish  the  $1969 
from  the  remaining  contents  of  the  barrel,  whether  the  action  could 
lie.  At  a  future  day  the  court  gave  judgment  for  the  plaintiff.  The 
objection  was  overruled  upon  the  ground  that  the  defendant  had  dis- 
posed of  all  the  dollars,  consequently  he  had  disposed  of  those  be- 
longing to  the  plaintiff. 

The  case  of  Gardner  v.  Dutch,  9  Mass.  427,  is  apparently  the  strong- 
est case  in  favor  of  the  plaintiff.  The  case  was  replevin  against  an 
officer  who  had  attached  goods  as  the  property  of  Wellman  &  Ropes. 
The  plaintiff"  had  seventy-six  bags  of  coff'ee,  to  which  he  became  en- 
titled as  owner,  upon  an  adjustment  of  accounts  of  a  voyage  he  had 
performed  for  Wellman  &  Ropes,  but  the  bags  belonging  to  the  plain- 
tiff" were  in  no  way  distinguished  by  marks,  or  separated  from  the 
other  coffee  of  Wellman  &  Ropes.  The  plaintiff'  on  his  arrival  at 
Salem,  from  his  voyage,  delivering  the  entire  coffee  to  Wellman  & 
Ropes,  taking  their  receipt  "for  seventy-six  bags  of  coff'ee,  being  his 
adventure  on  board  schooner  Liberty,  and  which  we  hold  subject  to 
his  order  at  any  time  he  may  please  to  call  for  the  same."  The  point 
taken  in  the  case  was  that  the  plaintiff  had  not  the  sole  property,  but 
only  an  undivided  interest,  and  so  could  not  maintain  replevin.  The 
court  ruled  that  the  plaintiff  was  not  a  tenant  in  common,  but  n?ight 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  65 

have  taken  the  number  of  bags  to  which  he  was  entitled,  at  his  own 
selection,  and  might  maintain  his  action. 

This  case,  on  the  face  of  it,  seems  to  go  far  to  recognize  the  right 
of  one  having  a  definite  number  of  barrels  of  any  given  articles 
mingled  in  a  common  mass,  to  select  and  take,  to  the  number  he  is 
entitled,  although  no  previous  separation  had  taken  place.  It  is, 
however,  to  be  borne  in  mind  in  reference  to  this  case,  that  it  did  not 
arise  between  vendor  and  vendee.  The  interest  in  the  seventy-six 
bags  of  coffee  did  not  originate  by  purchase  from  Wellman  &  Ropes. 
They  became  the  specific  property  of  the  plaintifif  in  that  action  on 
an  adjustment  of  an  adventure,  the  whole  proceeds  of  which  were 
in  his  hands ;  and  separated  with  the  possession,  only  when  he  took 
their  accountable  receipts  for  seventy-six  bags,  held  by  them  on  his 
account.  It  did  not  raise  the  question,  here  so  fully  discussed,  as  to 
what  is  necessary  to  constitute  a  delivery,  and  how  far  it  was  neces- 
sary to  have  a  separation  from  a  mass  of  articles,  to  constitute  a  trans- 
fer of  title.  Perhaps  the  circumstances  may  well  have  warranted  that 
decision,  but  we  are  not  satisfied  that  the  doctrine  of  it  can  be  prop- 
erly applied  to  a  case  where  the  party  asserts  his  title,  claiming  only  as 
a  purchaser  of  a  specific  number  of  barrels,  there  having  been  no  pos- 
session on  his  part,  and  no  separation  of  the  same  from  a  larger 
mass  of  articles  similar  in  kind,  and  no  descriptive  marks  to  designate 
them. 

On  the  other  hand,  in  support  of  the  position  that  this  sale  was 
never  perfected  for  want  of  such  separation  of  the  particular  barrels 
on  account  of  the  plaintiff,  or  some  designation  of  them  from  others 
of  like  kind,  there  will  be  found  a  strong  weight  of  authority;  and 
to  some  of  the  most  prominent  cases  I  will  briefly  refer.  Thus,  in 
the  case  of  Hutchinson  v.  Hunter,  7  Pa.  140,  which  was  an  action 
of  assumpsit  to  recover  payment  for  100  barrels  of  molasses  sold  to 
the  defendant,  the  same  being  parcel  of  125  barrels,  and  the  whole 
destroyed  by  fire  while  on  storage,  and  before  separation  or  designa- 
tion of  any  particular  barrels,  it  was  held  that  the  plaintifif  could  not 
recover,  the  sale  never  having  been  consummated.  Rogers,  J.,  says : 
"The  fundamental  rule  which  applies  to  this  case  is,  that  the  parties 
must  be  agreed  as  to  the  specific  goods  on  which  the  contract  is  to 
attach  before  there  can  be  a  bargain  and  sale.  The  goods  must  be 
ascertained,  designated,  and  separated  from  the  stock  or  quantity 
with  which  they  are  mixed,  before  the  property  can  pass."  He  con- 
siders the  case  of  Pleasants  v.  Pendleton,  27  Va.  475,  18  Am.  Dec. 
726,  as  decided  on  erroneous  principles. 

The  case  of  Hutchinson  v.  Hunter  presented  a  case  of  a  sub-con- 
tract or  sale  like  the  present,  and  it  was  urged  that  this  differed  the 
case  from  what  it  might  otherwise  have  been,  as  respects  the 
original  vendor.  But  the  court  held  that  this  did  not  vary  the  case 
WooDw.  Sales — 5 


66         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  2 

in  the  matter  of  the  necessity  of  a  separation  of  the  article  sold  from 
the  greater  mass.  So  in  Colder  v.  Ogden,  15  Pa.  528,  53  Am.  Dec. 
618,  where  a  contract  was  made  for  the  sale  of  2000  pieces  of  wall 
paper,  the  purchaser  giving  his  notes  therefor  to  the  vendor,  and  tak- 
ing away  with  him  1000  pieces,  and  it  was  agreed  that  the  other  1000 
pieces  should  remain  until  called  for  by  the  purchaser,  upon  a  ques- 
tion of  property  in  the  remaining  1000  pieces  between  the  assignees 
of  the  vendor  and  the  purchaser,  it  was  held  that  these  1000  pieces 
not  having  been  selected  by  the  buyer,  or  separated,  or  set  apart  for 
him,  but  remaining  mingled  with  other  paper  of  same  description,  did 
not  become  the  property  of  the  alleged  buyer,  as  against  an  assign- 
ment for  the  benefit  of  the  creditors  of  the  vendor.  The  principle 
advanced  in  that  case  seems  to  be  the  sound  one :  "That  the  property 
cannot  pass  until  there  be  a  specific  identification  in  some  way  of  the 
particular  goods  which  the  party  bargains  for.  The  law  knows  no 
such  thing  as  a  floating  right  of  property,  which  may  attach  itself 
either  to  one  parcel  or  the  other,  as  may  be  found  convenient  after- 
wards." 

The  case  of  Waldo  v.  Belcher,  33  N.  C.  609,  was  the  case  of  a  sale 
of  corn  by  a  vendor,  having  in  his  store  3100  bushels  of  corn,  and 
selling  2800  bushels  of  the  same,  but  the  2800  bushels  were  never 
separated  from  the  3100,  and  the  whole  was,  after  the  sale,  destroyed 
by  fire;  and  it  was  held  that  the  property  in  the  2800  bushels  did  not 
pass  to  the  vendee,  though  it  would  have  been  otherwise  had  it  been 
a  sale  of  all  the  corn  in  the  crib.  The  ground  of  the  decision  was, 
that  there  had  been  no  separation,  that  it  could  not  be  ascertained 
which  corn  was  the  property  of  the  vendee  until  it  was  separated. 
The  purchaser  could  not  bring  detinue,  because  he  could  not  describe 
the  particular  thing.    This  would  be  equally  so  as  to  replevin. 

The  case  of  Merrill  v.  Hunnewell,  13  Pick.  (Mass.)  213,  bears 
strongly  upon  the  question  before  us.  It  was  a  sale  of  nine  arches 
of  brick  in  a  kiln  containing  a  larger  number,  but  not  separated  from 
the  residue,  or  specifically  designated.  After  the  vendor  had,  by  other 
sales,  reduced  the  quantity  on  hand  to  less  than  nine  arches,  upon  a 
question  of  property  between  the  vendee  and  an  attaching  creditor 
of  the  vendor,  it  was  held  the  purchaser  took  no  property  in  the 
bricks,  the  sale  being  of  part  of  a  large  mass  not  delivered  nor  specif- 
ically designated. 

Blackburn,  in  his  Treatise  on  Sales,  p.  20,  presents  the  law  on  this 
subject  thus:  "Until  the  parties  are  agreed  as  to  the  specific  identical 
goods,  the  contract  can  be  no  more  than  a  contract  to  supply  goods 
answering  a  particular  description,  and  since  the  vendor  would  fulfil 
his  part  of  the  contract  by  furnishing  any  parcel  of  goods  answering 
that  description,  it  is  clear  there  can  be  no  intention  to  transfer  the 
property  in  any  particular  lot  of  goods  more  than  another,  until  it 
is  ascertained  which  are  the  very  goods  sold." 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  67 

Examining  the  facts  in  the  case  before  us,  and  applying  the  prin- 
ciples of  the  cases  last  cited,  and  the  approved  elementary  doctrine 
as  to  what  is  necessary  to  constitute  a  sale  of  property  not  separated 
from  the  mass  of  like  kind,  or  designated  by  any  descriptive  marks, 
the  court  are  clearly  of  opinion  that  the  property  in  the  specified  150 
barrels  of  pork  taken  by  the  plaintiff,  under  his  writ  of  replevin,  had 
never  passed  from  the  vendors,  and  therefore  this  action  cannot  be 
maintained. 

In  the  argument  of  this  case  on  the  part  of  the  plaintiff,  the  case 
was  put  as  a  case  of  intermixture  of  goods,  and  it  was  argued  that 
such  intermixture  having  taken  place,  the  plaintiff  might,  for  that 
cause,  hold  the  property  as  his.  But,  in  fact,  there  was  no  such  case 
of  intermixture.     The  entire  property  was  always  in  the  defendants. 

It  was  also  urged  that  the  defendants  were  estopped  to  deny  that  the 
150  barrels  of  pork  were  the  property  of  the  plaintiff,  having  given 
a  bill  of  sale  of  the  same,  and  under  the  circumstances  stated  in  the 
statement  of  facts.  Had  this  been  an  action  to  recover  damages  for 
the  value  of  150  barrels  of  pork,  this  position  might  be  tenable,  and 
the  defendants  estopped  to  deny  the  property  of  the  plaintiff  in  such 
150  barrels.  This  would  be  so  if  an  action  had  been  brought  against 
the  defendants  as  bailees  of  150  barrels  of  pork,  and  for  not  deliver- 
ing the  same. 

But  the  distinction  between  the  case  of  an  action  for  damages  for 
not  delivering  150  barrels,  and  that  of  replevin,  commanding  the  offi- 
cer to  take  from  the  possession  of  the  defendants  150  barrels,  and  de- 
liver the  same  to  plaintiff  as  his  property,  is  an  obvious  one.  To 
sustain  the  former,  it  is  only  necessary  to  show  a  right  to  150  barrels 
generally,  and  not  any  specific  150  barrels;  but  to  maintain  replevin, 
the  plaintiff  must  be  the  owner  of  some  specific  150  barrels.  If 
bought,  they  must  be  specifically  set  apart,  or  designated  in  some  way 
as  his,  and  not  intermingled  with  a  larger  mass  of  like  kind  owned 
by  the  vendor. 

Judgment  for  the  defendants. 


\ 


KIMBERLY  v.  PATCHIN. 

(Court  of  Appeals  of  New  York,  1859.     19  N.  Y.  330,  75  Am.  Dec.  334.) 

Appeal  from  the  Supreme  Court.  Action  to  recover  the  value  of 
six  thousand  bushels  of  wheat,  alleged  to  have  been  the  property  of 
the  plaintiffs,  and  to  have  been  converted  by  the  defendant.  Upon  the 
trial  before  Mr.  Justice  Greene,  at  the  Erie  Circuit,  it  was  proved  that, 
one  Dickinson  had  in  warehouse,  at  Littlefort,  in  Wisconsin  two  piles 
of  wheat,  amounting  to  six  thousand  two  hundred  and  forty-nine  bush- 
els.   John  Shuttleworth  proposed  to  purchase  six  thousand  bushels  of 


68         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  2 

wheat.  Upon  being  shown  the  piles,  he  expressed  a  doubt  whether 
they  contained  that  quantity.  Dickinson  declared  his  opinion  that  they 
did,  and  agreed  to  make  up  the  quantity  if  they  fell  short.  A  sale  was 
then  made  at  seventy  cents  per  bushel,  Dickinson  signing  and  deliver- 
ing to  Shuttleworth  a  memorandum,  as  follows : 

"Littlefort,  February  17,  1848. 
"John  Shuttleworth  Bought  of  D.  O.  Dickinson. 

6,000  bushels  of  wheat,  delivered  on  board,  70  cents $4,200 

Received  his  draft  upon  John  Shuttleworth.  of  Buffalo,  for. ..  .$2,100 

To  remit  me 1,600 

Five  drafts  of  $100  each 500 

$4,200 
"D.  O.  Dickinson." 

He  also  signed  and  delivered  to  Shuttleworth  this  paper,  viz : 

"Littlefort,  February  18,  1884. 
"6,000  bushels  wheat. 

"Received  in  store  6,000  bushels  of  wheat,  subject  to  the  order  of 
John  Shuttleworth,  free  of  all  charges  on  board. 

"D.  O.  Dickinson.-"' 

The  wheat  was  left  undisturbed  in  the  warehouse.  Shuttleworth 
sold  the  wheat  to  the  defendant,  assigning  to  him  the  bill  of  sale  and 
warehouse  receipt.  Dickinson,  shortly  afterwards,  sold  the  whole  quan- 
tity of  wheat  in  the  two  piles,  to  a  person  under  whom  the  plaintiffs 
derived  title.  The  defendant  having  obtained  the  possession  of  the 
wheat,  this  action  was  brought.  The  judge,  under  exception  by  the 
defendant,  directed  a  verdict  for  the  plaintiffs,  which  was  rendered, 
and  the  judgment  thereon  having  been  affirmed  at  general  term,  in  the 
eighth  district,  the  defendant  appealed  to  this  court. 

COMSTOCK,  J.2^  Both  parties  trace  their  title  to  the  wheat  in  con- 
troversy to  D.  O.  Dickinson,  who  was  the  former  owner,  and  held  it 
in  store  at  Littlefort,  Wisconsin.  The  defendant  claims  through  a  sale 
made  by  Dickinson  to  one  Shuttleworth  on  the  18th  of  February,  1848. 
If  that  sale  was  eff'ectual  to  pass  the  title,  it  is  not  now  pretended  that 
there  is  any  ground  on  which  the  plaintiff's  can  recover  in  this  suit. 
The  sale  to  the  person  under  whom  they  claim  was  about  two  and  a 
half  months  junior  in  point  of  time. 

The  sale  to  Shuttleworth  was  by  a  writing  in  the  form  of  a  present 
transfer  of  six  thousand  bushels  of  wheat,  at  seventy  cents  per  bushel. 
No  manual  delivery  was  then  made,  but  instead  thereof  the  vendor  ex- 
ecuted and  delivered  to  the  vendee  another  instrument,  declaring  that 
he  had  received  in  .store  the  six  thousand  bushels  subject  to  the  ven- 
dee's order;  of  the  price  $2,600  was  paid  down,  and  the  residue,  $!,•• 
j600,  which  was  to  be  paid  at  a  future  day,  the  purchaser  afterwards 

21  Part  of  the  opinion  is  omitted. 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  69 

offered  to  pay,  according  to  the  agreement.  So  far  the  contract  had 
all  the  requisites  of  a  perfect  sale.  The  sum  to  be  paid  by  the  pur- 
chaser was  ascertained,  because  the  number  of  bushels  and  the  price 
per  bushel  were  specified  in  the  contract.  ^  Although  the  article  was  not 
delivered  into  the  actual  possession  of  the  purchaser,  yet  the  seller,  by 
the  plain  terms  of  his  agreement,  constituted  himself  the  bailee,  and 
henceforth  stood  in  that  relation  to  the  purchaser  and  to  the  property. 
That  was  equal  in  its  results  to  the  most  formal  delivery,  and  no  argu- 
ment is  required  to  show  that  the  title  was  completely  divested,  unless 
a  difficulty  exists  yet  to  be  considered. 

The  quantity  of  wheat  in  store  to  which  the  contract  related  was  es- 
timated by  the  parties  at  about  six  thousand  bushels.  But  subsequent- 
ly, after  Dickinson  made  another  sale  of  the  same  wheat  to  the  party 
under  whom  the  plaintiffs  claim,  it  appeared  on  measurement  that  the 
number  of  bushels  was  six  thousand  two  hundred  and  forty-nine,  be- 
ing an  excess  of  two  hundred  and  forty-nine  bushels.  When  Shuttle- 
worth  bought  the  six  thousand  bushels,  that  quantity  was  mixed  in  the 
storehouse  with  the  excess,  and  no  measurement  or  separation  was 
made.  The  sale  was  not  in  bulk,  but  precisely  of  the  six  thousand 
bushels.  On  this  ground  it  is  claimed,  on  the  part  of  the  plaintiffs, 
that  in  legal  effect  the  contract  was  executory,  in  other  words,  a  mere 
agreement  to  sell  and  deliver  the  specified  quantity,  so  that  no  title 
passed  by  the  transaction.  It  is  not  denied,  however,  nor  does  it  admit 
of  denial,  that  the  parties  intended  a  transfer  of  the  title.  The  argu- 
ment is,  and  it  is  the  only  one  which  is  even  plausible,  that  the  law  over- 
rules that  intention,  although  expressed  in  plain  written  language,  en- 
tirely appropriate  to  the  purpose. 

It  is  a  rule  asserted  in  many  legal  authorities,  but  which  may  be 
quite  as  fitly  called  a  rule  of  reason  and  logic  as  of  law,  that  in  order 
to  an  executed  sale,  so  as  to  transfer  a  title  from  one  party  to  another, 
the  thing  sold  must  be  ascertained.  This  is  a  self-evident  truth,  when 
applied  to  those  subjects  of  property  which  are  distinguishable  by  their 
physical  attributes  from  all  other  things,  and,  therefore,  are  capable  of 
exact  identification.  No  person  can  be  said  to  own  a  horse  or  a  pic- 
ture, unless  he  is  able  to  identify  the  chattel  or  specify  what  horse  or 
what  picture  it  is  that  belongs  to  him.  It  is  not  only  legally,  but  logical- 
ly, impossible  to  hold  property  in  such  things,  unless  they  are  ascer- 
tained and  distinguished  from  all  other  things ;  and  this,  I  apprehend, 
is  the  foundation  of  the  rule  that,  on  a  sale  of  chattels,  in  order  to 
pass  the  title,  the  articles  must,  if  not  delivered,  be  designated,  so  that 
possession  can  be  taken  by  the  purchaser  without  any  further  act  on 
the  part  of  the  seller. 

But  property  can  be  acquired  and  held  in  many  things  which  are  in- 
capable of  such  an  identification.  Articles  of  this  nature  are  sold,  not 
by  a  description,  which  refers  to  and  distinguishes  the  particular  thing. 


70         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  2 

but  in  quantities,  which  are  ascertained  by  weight,  measure  or  count ; 
the  constituent  parts  which  make  up  the  mass  being  undistinguishable 
from  each  other  by  any  physical  difference  in  size,  shape,  texture  or 
quahty.  Of  this  nature  are  wine,  oil,  wheat  and  the  other  cereal  grains, 
and  the  flour  manufactured  from  them.  These  can  be  identified  only 
in  masses  or  quantities,  and  in  that  mode,  therefore,  they  are  viewed  in 
the  contracts  and  dealings  of  men.  In  respect  to  such  things,  the  rule 
above  mentioned  must  be  applied  according  to  the  nature  of  the  sub- 
ject. In  an  executed  and  perfect  sale,  the  things  sold,  it  is  true,  must 
be  ascertained.  But  as  it  is  not  possible  in  reason  and  philosophy  to 
identify  each  constituent  particle  composing  a  quantity,  so  thejlaw  does 
not  require  such  an  identification.  Where  the  quantity  and  the  general 
mass  from  which  it  is  to  be  taken  are  specified,  the  subject  of  the  con- 
tract is  thus  ascertained,  and  it  becomes  a  possible  result  for  the  title 
to  pass,  if  the  sale  is  complete  in  all  its  other  circumstances.  An  actual 
delivery  indeed  cannot  be  made  unless  the  whole  is  transferred  to  the 
possession  of  the  purchaser,  or  unless  the  particular  quantity  sold  is 
separated  from  the  residue.  But  actual  delivery  is  not  indispensable  in 
any  case  in  order  to  pass  a  title,  if  the  thing  to  be  delivered  is  ascer- 
tained, if  the  price  is  paid  or  a  credit  given,  and  if  nothing  further  re- 
mains to  be/  done  in  regard  to  it. 

It  appears  to  me  that  a  very  simple  and  elementary  inquiry  lies  at 
the  foundation  of  the  present  case.  A  quantity  of  wheat  being  in  store, 
is  it  possible  in  reason  and  in  law  for  one  man  to  own  a  given  portion 
of  it  and  for  another  man  to  own  the  residue  without  a  separation  of 
the  parts?  To  bring  the  inquiry  to  the  facts  of  the  case:  In  the  store- 
house of  Dickinson  there  was  a  quantity  not  precisely  known.  In  any 
conceivable  circumstances  could  Shuttleworth  become  owner  of  six 
thousand  bushels  and  Dickinson  of  the  residue,  which  turned  out  to 
be  two  hundred  and  forty-nine  bushels,  without  the  portion  of  either 
being  divided  from  the  other?  The  answer  to  this  inquiry  is  plain. 
Suppose  a  third  person,  being  the  prior  owner  of  the  whole,  had  given 
to  S.  a  bill  of  sale  of  six  thousand  bushels  and  then  one  to  D.  for  the 
residue  more  or  less',  intending  to  pass  to  each  the  title,  and  expressing 
that  intention  in  plain  words,  what  would  have  been  the  result?  The 
former  owner  most  certainly  would  have  parted  with  all  his  title.  If, 
then,  the  two  purchasers  did  not  acquire  it  no  one  could  own  the  wheat, 
and  the  title  would  be  lost.  This  would  be  an  absurdity.  But  if  the 
parties  thus  purchasing  could  and  would  be  the  owners,  how  would  they 
hold  it?  Plainly  according  to  their  contracts.  One  would  be  entitled 
to  six  thousand  bushels  and  the  other  to  what  remained  after  that 
quantit}-  was  subtracted. 

Again  suppose,  Dickinson  having  in  store  and  owning  two  hundred 
and  forty-nine  bushels,  Shuttleworth  had  deposited  with  him  six  thou- 
sand bushels  for  storage  merely,  both  parties  agreeing  that  the  quan- 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  71 

titles  might  be  mixed.  This  would  be  a  case  of  confusion  of  property 
where  neither  would  lose  his  title.  In  the  law  of  bailments  it  is  en- 
tirely settled  that  S.,  being  the  bailor  of  the  six  thousand  bushels,  would 
lose  nothing  by  the  mixture,  and,  it  being  done  by  consent,  it  is  also 
clear  that  the  bailee  would  lose  nothing.  Story  on  Bailments,  §  40 ;  2 
Bl.  Com.  405. 

These  and  other  illustrations  which  might  be  suggested  demonstrate 
the  possibility  of  a  divided  ownership  in  the  six  thousand  two  hundred 
and  forty-nine  bushels  of  wheat.  If,  then,  the  law  admits  that  the 
property,  while  in  mass,  could  exist  under  that  condition,  it  was  plain- 
ly competent  for  the  parties  to  the  sale  in  question  so  to  deal  with 
each  other  as  to  effectuate  that  result.  One  of  them  being  the  owner 
of  the  whole,  he  could  stipulate  and  agree  that  the  other  should  thence- 
forth own  six  thousand  bushels  without  a  separation  from  the  residue. 
And  this,  I  think,  is  precisely  what  was  done.  The  six  thousand  bush- 
els might  have  been  measured  and  delivered  to  the  purchaser,  and  then 
the  same  wheat  might  have  been  re-delivered  to  the  seller  under  a 
contract  of  bailment.  In  that  case  the  seller  would  have  given  his 
storehouse  receipt  in  the  very  terms  of  the  one  which  he  actually 
gave ;  and  he  might,  moreover,  have  mixed  the  wheat  thus  re-delivered 
with  his  own,  thereby  reducing  the  quantity  sold  and  the  quantity  un- 
sold again  to  one  common  mass. 

Now  the  contract  of  sale  and  of  bailment,  both  made  at  the  same 
time,  produced  this  very  result.  The  formalities  of  measurement  and 
delivery  pursuant  to  the  sale,  and  of  re-delivery  according  to  the  bail- 
ment— resulting  in  the  same  mixture  as  before — most  assuredly  were 
not  necessary  in  order  to  pass  the  title,  because  these  formalities  would 
leave  the  property  in  the  very  same  condition  under  which  it  was  in 
fact  left ;  that  is  to  say,  in  the  actual  custody  of  the  vendor,  and  blend- 
ed together  in  a  common  mass.  Those  formal  and  ceremonial  acts  were 
dispensed  with  by  the  contract  of  the  parties.  They  went  directly  to 
the  result  without  the  performance  of  any  useless  ceremonies,  and  it 
would  be  strange,  indeed,  if  the  law  denied  their  power  to  do  so. 

There  are  in  the  books  a  considerable  number  of  cases  having  a  real 
or  some  apparent  bearing  upon  the  question  under  consideration.  Some 
of  them  very  unequivocally  support  the  defendant's  title  under  the 
sale  to  Shuttleworth.  A  few  only  of  these  will  be  .cited.  In  White- 
house  V.  Frost,  12  East,  614,  the  vendors  owned  forty  tons  of  oil  se- 
cured in  one  cistern,  and  they  sold  ten  tons  out  of  the  forty,  but  the 
quantity  sold  was  not  measured  or  delivered.  The  purchaser  sold  the 
same  ten  tons  to  another  person,  and  gave  a  written  order  on  the  orig- 
inal vendors,  which,  on  being  presented,  they  accepted,  by  writing 
the  word  "accepted"  on  the  face  of  the  order,  and  signing  their  names. 
It  was  held  by  the  English  Common  Pleas  that  the  title  passed ;  con- 
siderable stress  being  laid  on  the  acceptance  of  the  order,  which,  it 


72         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  2 

was  said,  placed  the  vendors  in  the  relation  of  bailees  to  the  quantity 
sold.    This  was  in  1810. 

In  the  following  year  the  case  of  Jackson  v.  Anderson,  4  Taunt.  24, 
was  decided  in  the  King's  Bench.  That  was  an  action  of  trover  for 
one  thousand  nine  hundred  and  sixty  pieces  of  coin  called  Spanish 
dollars.  Mr.  Fielding,  at  Buenos  Ayres  remitted  to  Laycock  &  Co., 
at  London,  $4,700,  and  advised  the  plaintiffs  that  one  thousand  nine 
hundred  and  sixty  of  the  number  were  designed  for  them  in  payment 
for  goods  bought  of  them.  Laycock  &  Co.  received  the  four  thousand 
seven  hundred  pieces  and  pledged  the  whole  of  them  to  the  defendant, 
who  .sold  them  to  the  bank  of  England.  It  was  held :  1.  That  the  letter 
of  advice  was  a  sufficient  appropriation  of  $L960  to  the  plaintiffs.  2. 
That  the  plaintiff's  and  defendant  did  not  become  joint-tenants  or  ten- 
ants in  common  of  the  dollars.  3.  That  although  no  specific  dollars 
were  separated  from  the  residue  for  the  plaintiff's,  yet  as  the  defend- 
ant had  converted  the  whole,  trover  would  lie  for  the  plaintiff's'  share. 
Of  course  the  action  in  its  nature  directly  involved  the  plaintiffs'  title, 
and  it  was  held  that  the  sale  or  appropriation  of  a  part  without  any 
separation  was  a  perfect  sale. 

In  Pleasants  v.  Pendleton,  27  Va.  473,  18  Am.  Dec.  726,  the  sale 
(omitting  immaterial  circumstances)  was  of  one  hundred  and  nineteen 
out  of  one  hundred  and  twenty-three  barrels  of  flour,  situated  in  a 
warehouse,  all  of  the  same  brand  and  quality.  It  was  held  by  the 
Virginia  Court  of  Appeals,  upon  very  elaborate  consideration,  and 
after  a  review  of  all  the  cases,  that  the  title  was  transferred  by  the 
sale.  See,  also,  Damon  v.  Osborn,  1  Pick.  (Mass.)  477,  11  Am.  Dec. 
229;  Crofoot  v.  Bennett,  2  N.  Y.  258.  In  the  last-mentioned,  which 
was  decided  in  this  court,  the  sale  was  of  forty-three  thousand  bricks 
in  an  unfinished  kiln  containmg  a  larger  quantity.  A  formal  posses- 
sion of  the  whole  brick-yard  was  taken  by  the  purchaser.  It  was  held 
that  he  acquired  title  to  the  forty-three  thousand,  although  no  separa- 
tion was  made. 

In  the  opinion  of  Judge  Strong,  the  case  was  made  to  turn  mainly 
on  a  supposed  delivery  of  the  whole  quantity.  But,  with  deference, 
that  circumstance  does  not  appear  to  me  to  have  been  the  material 
one,  inasmuch  as  all  the  bricks  confessedly  were  not  sold.  The  deliv- 
ery, therefore,  did  not  make  the  sale,  and  if  part  could  not  be  sold 
without  being  separated  I  do  not  see  how  a  formal  delivery  of  the 
whole  brick-yard  could  cure  the  difficulty.  The  learned  judge  speaks 
of  the  transaction  as  a  delivery  of  the  whole  quantity  "with  the  priv- 
ilege of  selection."  But  assuming,  as  he  did,  that  the  want  of  selec- 
tion or  separation  was  the  precise  difficulty  to  be  overcome,  it  is  not 
easy  to  see  how  a  privilege  to  select  could  change  the  title  before  the 
selection  was  actually  made.  The  case,  therefore,  it  seems  to  me,  can 
only  stand  on  the  ground  that  the  sale  was  in  its  nature,  complete; 
the  formal  delivery  of  the  whole  being  doubtless  a  circumstance  enti- 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  7o 

tied  to  weight  in  arriving  at  the  intention  of  the  parties.  The  case 
is  in  short  a  strong  authority  to  prove  that  in  sales  by  weight,  measure 
or  count,  a  separation  of  the  part  sold  from  the  mass  is  not  in  all  cases 
a  fundamental  requisite. 

Referring  now  to  cases  where  it  has  been  held  that  sales  of  this 
general  nature  were  incomplete,  it  will  be  found  that  they  are  not  essen- 
tially and  necessarily  opposed  to  the  conclusion  that,  in  the  instance  be- 
fore us,  the  title  was  changed.  In  White,  Assignee,  etc.,  v.  Wilks,  5 
Taunt.  176,  a  merchant  sold  twenty  tons  of  oil  out  of  a  stock  consisting 
of  different  large  quantities  in  different  cisterns,  and  at  various  ware- 
houses. The  note  of  sale  did  not  express  the  quality  or  kind  of  oil  sold 
or  the  cistern  or  warehouse  from  which  it  was  to  be  taken,  and  the  pur- 
chaser did  not  even  know  where  the  particular  oil  lay,  which  was  to  sat- 
isfy the  contract.  Very  clearly  the  title  could  not  pass  upon  such  a  sale ; 
and  so  it  was  held,  although  the  seller  was  entitled  by  the  contract  to 
charge  "Is.  per  ton  per  week  rent,"  for  keeping  the  oil.  A  very  differ- 
ent question  would  have  been  presented  if  the  cistern  from  which  the 
twenty  tons  were  to  be  taken  had  been  specified.  The  mass  and  qual- 
ity would  then  have  been  ascertained.  As  it  was,  the  subject  of  the 
contract  was  not  identified  in  any  manner.  The  remarks  of  the  judge, 
evidently  not  made  with  much  deliberation,  must  be  construed  with 
reference  to  the  particular  facts  of  the  case. 

In  Austen  v.  Craven,  4  Taunt.  644,  there  was  a  contract  to  sell  two 
hundred  hogsheads  of  sugar,  to  be  of  four  different  kinds  and  qual- 
ities, which  were  specified.  It  did  not  appear  that  the  seller,  at  the 
time  of  the  contract,  had  the  sugar  on  hand,  or  any  part  of  it,  and  the 
fact  was  assumed  to  be  otherwise.  The  sale  was,  moreover,  at  so 
much  per  cwt.,  requiring  that  the  sugar  should  be  weighed  in  order 
to  ascertain  the  price.  In  these  circumstances  the  case  was  consid- 
ered plainly  distinguishable  from  Whitehouse  v.  Frost,  supra,  and  it 
was  held  that  the  title  did  not  pass.  I  do  not  see  the  slightest  ground 
for  questioning  the  decision,  although,  perhaps,  one  or  two  remarks 
of  Chief  Justice  Mansfield  are  capable  of  a  wider  application  than  the 
facts  of  the  case  would  justify. 

The  two  cases  last  mentioned  have  been  not  unfrequently  cited  in 
various  later  English  and  American  authorities,  which  need  not  be 
particularly  referred  to.  Some  of  these  authorities  may  suggest  a 
doubt  whether  the  title  passes  on  a  mere  sale  note  by  measure  or 
weight  out  of  a  larger  quantity  of  the  same  kind  and  quality,  there 
being  no  separation  and  no  other  circumstances  clearly  evincing  an 
intention  to  vest  the  title  in  the  purchaser.  It  is  unnecessary  now  to 
solve  that  doubt,  because  none  of  the  decisions  announce  the  extreme 
doctrine,  that  where,  in  such  cases,  the  parties  expressly  declare  an 
intention  to  change  the  title,  there  is  any  legal  impossibility  in  the  way 
of  that  design. 


74  UNASCIiKTAINED    GOODS   OF    A   FUNGIBLE    NATURE  (Ch.  2 

Upon  a  simple  bill  of  sale  of  gallons  of  oil  or  bushels  of  wheat, 
mixed  with  an  ascertained  and  defined  larger  quantity,  it  may  or  may 
not  be  considered  that  the  parties  intend  that  the  portion  sold  shall  be 
measured  before  the  purchaser  becomes  invested  with  the  title.  That 
may  be  regarded  as  an  act  remaining  to  be  done,  in  which  both  parties 
have  a  right  to  participate.  But  it  is  surely  competent  for  the  vendor 
to  say  in  terms,  that  he  waives  that  right,  and  that  the  purchaser  shall 
'become  at  once  the  legal  owner  of  the  number  of  gallons  or  bushels 
embraced  in  the  sale.  If  he  cannot  say  this  effectually,  then  the  rea- 
son must  be  that  two  men  cannot  be  owners  of  separate  quantities  or 
proportions  of  an  undistinguishable  mass.  That  conclusion  would  be 
a  naked  absurdity,  and  I  have  shown  that  such  is  not  the  law.  In  the 
case  before  us  the  vendor  not  only  executed  his  bill  of  sale  professing 
to  transfer  six  thousand  bushels  of  wheat,  but  waiving  all  further 
acts  to  be  done,  in  order  to  complete  the  transaction,  he  acknowledged 
himself,  by  another  instrument,  to  hold  the  same  wheat  in  store  as  the 
bailee  thereof  for  the  purchaser.  If  his  obligations  from  that  time 
were  not  simply  and  precisely  those  of  a  bailee,  it  is  because  the  law 
would  not  suffer  him  to  stand  in  that  relation  to  the  property  for  the 
reason  that  it  was  mixed  with  his  own.  But  no  one  will  contend  for 
such  a  doctrine. 

I  repeat  it  is  unnecessary  to  refer  to  all  the  cases,  or  to  determine 

between  such  as  may  appear  to  be  in  conflict  with  each  other.     None 

of  them  go  to  the  extent  of  holding  that  a  man  cannot,  if  he  wishes 

and  intends  so  to  do,  make  a  perfect  sale  of  part  of  a  quantity  without 

actual  separation,  where  the  -mass  is  ascertained  by  the  contract  and  all 

parts  are  of  the  same  value  and  undistinguishable  from  each  other. 
^     ^     ^ 

We  are  of  opinion,  therefore,  both  upon  authority  and  clearly  upon 
I  the"  principle  and  reason  of  the  thing,  that  the  defendant,  under  the 
sale  to  Shuttleworth,  acquired  a  perfect  title  to  the  six  thousand  bush- 
els of  wheat.  Of  that  quantity  he  took  possession  at  Buft'alo,  by  a 
■writ  of  replevin  against  the  master  of  the  vessel  in  which  the  whole 
had  been  transported  to  that  place.  For  that  taking  the  suit  was 
brought,  and  it  results  that  the  plaintiff  cannot  recover.  It  is  unnec- 
essary to  decide  whether  the  parties  to  the  original  sale  became  ten- 
ants in  common.  If  a  tenancy  in  common  arises  in  such  cases,  it  must 
be  with  some  peculiar  incidents  not  usually  belonging  to  that  species 
'of  ownership.  I  think  each  party  would  have  the  right  of  severing 
the  tenancy  by  his  own  act ;  that  is,  the  right  of  taking  the  portion  of 
the  mass  which  belonged  to  him,  being  accountable  only  if  he  invaded 
the  quantity  which  belonged  to  the  other.  But  assuming  that  the  case 
lis  one  of  strict  tenancy  in  common,  the  defendant  became  the  owner 
of  six  thousand  and  the  plaintiffs  of  two  hundred  and  forty-nine  parts 
of  the  whole.    As  neither  could  maintain  an  action  against  the  other. 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  75 

for  taking  possession  merely  of  the  whole,  more  clearly  he  cannot  if 
the  other  takes  only  the  quantity  which  belongs  to  him. 

The  judgment  must  be  reversed  and  a  new^  trial  granted. 

Gray  and  Grover,  JJ.,  dissented;  Strong,  J.,  expressed  himself 
as  inclined  to  concur,  if  necessary  to  a  decision;  but,  it  being  unnec- 
essary, he  reserved  his  judgment. 

Judgment  reversed  and  new  trial  ordered. 


ANDERSON  v.  CRISP. 

(Supreme  Court  of  Washington,  1S92.     5  Wash.  178.  31  Pac.  6.38,  18  L.  R.  A. 

419.) 

Action  by  J.  M.  Anderson  and  another  against  George  W.  Crisp  to 
recover  possession  of  some  brick  held  by  defendant  as  constable  under 
a  levy.     From  a  judgment  for  defendant,  plaintiffs  appeal.     Affirmed. 

Dunbar,  J.  It  is  contended  by  the  appellants  that  the  determining 
question  in  this  case  is  whether  a  sale  of  personal  property  constitut- 
ing part  of  a  large  mass  of  like  property  passes  title  to  the  purchaser 
until  it  is  separated  from  the  mass,  or  in  some  other  way  designated 
or  distinguished ;  and  appellants'  brief  on  this  proposition  is  elab- 
orate and  painstaking,  and  would  greatly  aid  the  court  in  investigating 
this  question,  did  we  deem  its  determination  necessary  in  this  cause. 

The  question  presented  by  appellants  is  a  new  question  in  this  state, 
and  is  an  exceedingly  important  one ;  and  in  consideration  of  its  im- 
portance, and  in  consideration  of  the  fact  that  the  authorities  are  so 
conflicting,  we  deem  it  advisable  not  to  decide  it  until  such  decision 
is  necessary  to  the  determination  of  the  cause  at  issue.  We  say  this 
because,  conceding  the  force  of  appellants'  argument,  this  cause,  we 
think,  must  be  distinguished  from  the  cases  cited  which  sustain  the 
rule  contended  for  by  appellants,  that  it  is  not  necessary  to  separate  or 
distinguish  a  portion  of  personal  property  from  the  mass  wdiich  in- 
cludes it,  to  pass  title  to  the  portion  sold.  All  those  cases  are  based 
on  the  supposition  that  all  the  dift'erent  portions  of  the  mass  are  of 
equal  value  and  of  uniform  quality,  so  that  there  is  nothing  left  to  be 
done  by  either  party  but  to  weigh,  measure,  or  count,  which  acts  in- 
volve no  discretion;  that  the  intention  of  the  parties  to  the  contract 
is  the  only  thing  to  be  considered,  and  that,  when  it  can  be  definitely 
determined  from  the  terms  of  the  contract  that  the  intention  of  the 
parties  was  to  pass  the  title,  the  title  is  held  to  pass.  Or,  in  other 
words,  we  presume  they  mean  to  say  that,  while  the  separation  from 
the  common  mass  is  a  circumstance  going  to  show  the  intention  of  the 
parties  to  pass  the  title,  it  is  not  an  essential  circumstance. 

Kimberly  v.  Patchin.  19  N.  Y.  330,  75  Am.  Dec.  334,  is  the  leading 
case  supporting  this  rule,  and  has  received  much  criticism,  both  favor- 
able and  adverse,  by  courts  and  text  writers.    There  it  was  held,  upon 


76         UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE      (Ch.  2 

a  sale  of  a  specific  quantity  of  grain,  that  its  separation  from  a  mass 
indistinguishable  in  quality  or  value,  in  which  it  is  included,  is  not 
necessary  to  pass  the  title,  when  the  intention  to  do  so  is  otherwise 
clearly  manifested.  In  that  case  it  will  be  noticed  that  the  goods 
were  indistinguishable  in  quality  or  value,  and  it  was  upon  that  par- 
ticular state  of  facts  that  the  argument  of  the  court  was  based.  "It 
is,"  said  the  court,  "a  rule  asserted  in  many  legal  authorities,  but  which 
may  be  quite  as  fitly  called  a  rule  of  reason  and  logic  as  of  law,  that  in 
order  to  an  executed  sale,  so  as  to  transfer  a  title  from  one  party  to 
the  other,  the  thing  sold  must  be  ascertained.  This  is  a  self-evident 
truth,  when  applied  to  those  subjects  of  property  which  are  distin- 
guishable by  their  physical  attributes  from  all  other  things,  and  there- 
fore are  capable  of  exact  identification."  But  the  court  with  great 
force  proceeds  to  argue  that  other  character  of  property,  such  as 
grains,  wines,  oils,  etc.,  which  are  not  susceptible  of  definite  descrip- 
tion, are  not  subject  to  this  rule,  but  that  the  title  to  such  property 
can  be  held  to  pass  by  contract  without  separation  or  manual  delivery, 
if  nothing  further  remains  to  be  done  in  regard  to  it. 

But  it  must  be  admitted  that  if  all  the  property  in  the  mass  is  not 
of  equal  value  something  more  does  remain  to  be  done.  Thus,  in  the 
case  at  bar,  another  element  is  injected  into  the  contract,  and  there 
is  a  question  of  relative  values  to  be  yet  determined.  The  appellants 
did  not  buy  a  portion  of  an  indistinguishable  mass,  where  all  the  com- 
ponent parts  were  of  equal  value;  but  their  contract  called  for  162,000 
merchantable  brick ;  and  the  evidence  was  that  the  brick  that  were 
deemed  unmerchantable  were  thrown  aside  and  not  counted  in  when 
they  came  to  haul  them.  So  that  it  is  impossible  to  determine,  before 
the  segregation  of  the  brick,  not  only  what  particular  brick  were  sold, 
but  what  relative  portions  of  the  kiln  were  sold.  And  while,  as  we 
have  said  before,  it  may  be  conceded  that  the  intention  of  the  parties 
will  be  carried  into  efifect,  if  it  can  be  ascertained,  yet  under  this  con- 
tract it  is  impossible  to  ascertain,  not  only  the  particular  brick  sold, 
but  the  actual  relative  number  of  brick  sold,  by  reason  of  the  unset- 
tled question  of  what  brick  were  and  what  were  not  merchantable, 
creating  an  element  of  uncertainty  in  the  contract  which  does  not  ex- 
ist in  those  cases  where  the  vendor  sells  a  certain  number  of  bushels 
of  grain  or  a  certain  number  of  gallons  of  oil  or  tons  of  hay,  in  an 
undivided  mass,  where  all  the  different  portions  are  of  equal  value. 

We  think  to  hold  that  the  title  passed  in  this  case  would  be  carrying 
the  principles  of  liberal  construction  beyond  the  rule  laid  down  in 
any  of  the  cases  cited  by  appellants.  It  is  true  that  some  of  them  were 
brick  cases,  similar  in  most  respects  to  the  case  at  bar,  but  in  none 
of  them  did  it  appear  that  the  brick  in  the  kiln  were  not  of  uniform 
and  equal  value;  and  all  the  American  cases  were  decided  on  the 
strength  of  Kimberly  v.  Patchin,  supra,  and  the  principles  upon  which 
that  case  was  based  are  thus  stated  by  Mr.  Ralston,  who  is  an  earnest 


Sec.  5)     UNASCERTAINED  GOODS  OF  A  FUNGIBLE  NATURE  77 

advocate  of  what  he  terms  "the  new  rule:"  "When  the  constituent 
parts  which  make  up  a  mass  are  indistinguishable  from  each  other 
by  any  physical  difference  in  size,  shape,  texture,  or  quality,  and  the 
quantity  and  general  mass  from  which  it  is  to  be  taken  are  specified, 
the  subject  of  the  contract  is  sufficiently  ascertained,  and  the  title  will 
pass,  if  the  sale  is  complete  in  all  its  other  circumstances."  Plainly, 
the  case  at  bar  does  not  fall  within  those  principles. 

This  being  our  view  of  the  law  covering  this  particular  case,  and 
there  being  no  conflict  in  the  testimony  concerning  the  fact  that  it  was 
only  merchantable  brick  that  were  sold,  the  appellants  could  not  have 
been  injured  by  the  instruction  complained  of;  for  they  would  not 
have  been  entitled  to  a  verdict,  in  any  event. 

Reaching  this  conclusion  renders  unnecessary  the  investigation  of 
the  other  questions  raised.    The  judgment  is  affirmed. 

Andi;rs,  C.  J.,  and  Hoyt,  Stile:s,  and  ScoTT,  JJ.,  concur. 


LAMPREY  v.  SARGENT. 

(Supreme  Court  of  New  Hampshire,  187S.     58  N.  H.  241.) 

Replevin,  for  15,0CX)  hard  bricks.  Pleas,  the  general  issue,  and  a 
denial  of  the  plaintiff's  title.  The  defendant  and  one  Curtis  were 
brickmakers ;  and  August  4,  1873,  being  the  owners  of  eight  holes  of 
a  kiln,  they  made  the  following  sale : 

"Plaistow,  August  4,  1873. 

"This  day  sold  to  J.  S.  Lamprey  six  holes  of  hard  brick,  now  on 
our  yard  on  Bly  land,  next  to  the  highway,  estimated  at  eighty  thou- 
sand, be  the  same  more  or  less,  at  seven  dollars  per  thousand: — 80  M. 
@  $7.00  per  M.,  $560.00.  Sargent  &  Chase." 

On  the  same  day  the  plaintiff  took  two  bricks,  and  in  a  day  or  two 
after,  four  thousand,  from  the  six  holes.  The  defendant  took  the 
15,000  hard  bricks  from  the  six  holes,  in  March,  1874.  The  evidence 
tended  to  show  that  a  kiln  contains  three  kinds  of  bricks, — hard,  light 
red,  and  pale ;  that  these  kinds  are  suitable  for  different  uses,  are  of 
different  values,  and  are  well  known  to  masons,  brickmakers,  and 
dealers ;  that  their  proportions  in  a  kiln  depend  upon  the  success  in 
burning;  that  this  kiln  was  well  burnt,  and  the  pale  and  light  red 
were  a  small  portion  of  the  whole;  that  the  pale  were  on  the  outside, 
the  light-red  further  in,  and  the  hard  still  further  in;  that  the  sep- 
aration of  the  different  kinds  requires  some  skill  and  judgment;  and 
that  on  the  day  of  sale  the  pale  had  been,  and  the  light-red  had  not 
been,  separated  and  removed  from  three  sides  of  that  part  of  the  kiln 
called,  in  the  bill  of  sale,  the  six  holes.  The  question  was,  whether 
there  was  a  sufficient  separation  to  pass  the  title  to  the  15,000  bricks 
to  the  plaintiff. 


78  UNASCERTAINED   GOODS APPROPRIATION  (Ch.  2 

Bingham,  J.  The  facts  stated  in  the  case  are  equivalent  to  a  find- 
ing that  the  six  holes  of  bricks,  including  the  hard  and  light-red,  un- 
separated,  were  constructively  delivered  to  the  plaintiff  with  the  right 
to  retain  the  possession  of  the  whole  for  a  reasonable  time,  that  he 
might  select  therefrom  the  hard  bricks,  and  leave  the  light-red  for 
the  vendors.  It  was  an  executed  sale  as  between  the  parties,  and 
passed  the  title  to  the  hard  bricks  to  the  plaintiff.  Page  v.  Carpenter, 
10  N.  H.  77. 

In  the  case  of  a  sale  of  a  part  of  an  entire  mass  of  goods,  such 
as  coal,  brick,  flour,  and  grain,  if  the  purchaser  is  allowed  to  take 
possession  of  the  whole  for  the  purpose  of  enabling  him  to  separate 
the  part  sold,  the  title  to  that  part  passes  to  the  purchaser,  and  he 
may  retain  the  whole  until  he  has  had  a  sufficient  time  and  oppor- 
tunity to  separate  and  take  the  part  belonging  to  him.  Story  on  Sales 
314,  n.  3;  Weld  v.  Cutler,  2  Gray  (Mass.)  195;  Damon  v.  Osborn, 
1  Pick.  (Mass.)  475,  11  Am.  Dec.  229. 

Judgment  on  the  verdict. 


SECTION  6.— CONTRACT  TO  SELL  UNASCERTAINED 
GOODS— APPROPRIATION 


WOODS  et  al.  v.  RUSSELL. 
(Court  of  King's  Bench,  1822.     5  Barn.  &  Aid.  942.) 

Abbott,  C.  J.,  now  delivered  the  judgment  of  the  Court. 

This  was  an  action  of  trover  for  a  ship,  rudder,  and  cordage,  by  the 
assignees  of  Alexander  Paton,  a  bankrupt,  and  the  facts  were  shortly 
as  follows :  Paton  was  a  ship-builder,  and  in  October,  1818,  he  entered 
into  a  written  contract  with  the  defendant  to  build  and  complete  a  ship 
for  the  defendant,  and  finish  and  launch  her  in  April,  1819;  and  the 
defendant  was  to  pay  for  the  ship  by  four  instalments  of  £750.  each ; 
the  first  when  the  keel  was  laid,  the  second  when  they  were  at  the 
light  plank,  and  the  third  and  fourth  when  the  ship  was  launched. 
The  payments  were  to  be  made  by  bills  at  two,  four,  six,  and  eight 
months.  The  first  and  second  instalments  were  duly  paid.  In  March, 
1819,  the  defendant  appointed  a  master,  who  from  that  time,  super- 
intended the  building.  In  Alay,  1819,  the  defendant  advertised  the 
ship  for  charter,  and  on  the  16th  of  June  chartered  her,  with  Paton's 
privity,  for  a  voyage  from  Newcastle  to  Newfoundland.  Before  the 
26th  of  June  the  ship  was  measured  and  surveyed,  with  Paton's 
privity,  to  the  intent  that  the  defendant  might  get  her  registered  in  his 
name.     On  the  19th  June  the  master  entered  into  the  usual  bond  for 


Sec.  6)  UNASCERTAINED    GOODS APPROPRIATION  79 

delivering  up  the  register;  on  the  25th  Paton  signed  the  usual  certifi- 
cate of  her  build,  &c.,  and  on  the  26th  the  ship  was  registered  in  the 
defendant's  name.  On  that  day  the  defendant  paid  Paton  the  third 
instalment.  Paton's  certificate  described  the  ship  as  launched,  but 
that  was  not  the  case,  and  Paton's  people  continued  working  upon 
her,  and  using  his  timber  and  materials  till  the  third  of  July.  One  of 
the  master's  apprentices  was  employed  on  board  by  his  directions  from 
the  early  part  of  June,  and  on  the  30th  the  master  ordered  him  to 
sleep  on  board ;  but  on  that  same  day  Paton  committed  an  act  of 
bankruptcy,  upon  which  a  commission  afterwards  issued.  On  the 
2d  of  July  the  defendant  and  a  crew  he  had  hired  took  possession 
of  the  ship,  and  his  servants,  by  his  direction,  took  from  Paton's 
yard  and  warehouse  a  rudder  and  cordage,  which  Paton  had  bought 
for  the  ship.  On  the  4th  of  July  the  ship  was  launched.  The  fourth 
instalment  was  never  paid.  The  ship  was  incomplete  when  the  act 
of  bankruptcy  was  committed,  and  the  expense  of  launching  her  was 
borne  by  the  defendant. 

Upon  these  facts,  the  questions  proposed  to  the  consideration  of  the 
Court  were,  whether  the  plaintiffs  were  entitled  to  recover  the  value 
of  the  ship,  in  which  case  the  value,  subject  to  a  deduction,  was  to 
be  taken  at  £3000;  or,  if  not,  whether  they  were  entitled  to  recover 
the  value  of  the  rudder  and  cordage;  and  should  the  Court  be  of 
opinion  that  they  were  entitled  to  neither,  a  nonsuit  was  to  be  entered ; 
and  upon  these  points  alone  the  case  was  argued  before  the  Court. 
It  has  occurred,  however,  to  the  Court,  that  a  third  question  arises 
upon  the  facts,  which  neither  party  could  have  intended  to  exclude, 
which  is  this :  whether,  if  the  plaintiffs  are  not  entitled  to  recover 
the  whole  value  of  the  ship,  they  may  not  be  entitled  to  recover  to 
the  extent  of  so  much  of  the  fourth  instalment  as,  if  the  defendant 
has  the  ship,  he  ought  to  pay.  And,  upon  the  first  and  second  ques- 
tions, our  opinion  is  in  favour  of  the  defendant ;  upon  the  last  against 
him.  This  ship  is  built  upon  a  special  contract,  and  it  is  part  of  the 
terms  of  the  contract,  that  given  portions  of  the  price  shall  be  paid 
according  to  the  progress  of  the  work ;  part  when  the  keel  is  laid,  part 
when  they  are  at  the  light  plank.  The  payment  of  these  instalments 
appears  to  us  to  appropriate  specifically  to  the  defendant  the  very  ship 
so  in  progress,  and  to  vest  in  the  defendant  a  property  in  that  ship,! 
and  that,  as  between  him  and  the  builder,  he  is  entitled  to  insist  upon! 
the  completion  of  that  very  ship,  and  that  the  builder  is  not  entitled' 
to  require  him  to  accept  any  other. 

But  this  case  does  not  depend  merely  upon  the  payment  of  the 
instalments ;  so  that  we  are  not  called  upon  to  decide  how  far  that 
payment  vests  the  property  in  the  defendant,  because,  here,  Paton 
signed  the  certificate  to  enable  the  defendant  to  have  the  ship  regis- 
tered in  his  (the  defendant's)  name,  and  by  that  act  consented,  as  it 
seems  to  us,  that  the  general  property  in  the  ship  should  be  consid- 


80  UNASCERTAINED   GOODS APPROPRIATION  (Ch.  2 

ered  from  that  time  as  being  in  the  defendant.  The  defendant  had, 
at  that  time,  paid  half  what  the  ship,  when  complete,  would  be  worth. 
Paton  could  not  be  injured  by  having  the  general  property  in  the  ship 
considered  as  vested  in  the  defendant,  because  he  would  still  have  a 
lien  upon  the  possession  for  the  residue  of  the  price;  and  we  think 
the  legal  effect  of  signing  the  certificate  for  the  purpose  of  having  the 
ship  registered  was,  from  the  time  the  registry  was  complete,  to  vest 
the  general  property  in  the  defendant.  In  order  to  register  the  ship  in 
the  defendant's  name,  an  oath  would  be  requisite  that  the  defendant 
was  the  owner,  and  when  Paton  concurred  in  what  he  knew  was  to 
lead  to  that  oath,  must  he  not  be  taken  to  have  consented  that  the 
ownership  should  really  be  as  that  oath  described  it  to  be? 

The  case  of  Macklow  v.  Triangles,  1  Taunt.  318,  seems  to  us  to  be 
clearly  distinguishable  from  the  present,  because  the  bargain  there 
for  building  the  barge  does  not  appear  to  have  stipulated  for  the  ad- 
vances which  were  made,  and  those  advances  do  not  appear  to  have 
been  regulated  by  the  progress  of  the  work.  Mr.  Justice  Heath's 
opinion  appears  to  have  been  founded  on  the  notion  that  the  builder 
was  not  tied  down  to  deliver  that  specific  barge,  but  would  have  been 
at  full  liberty  to  have  substituted  any  other  he  was  building,  and  the 
builder  had  done  no  act  expressing  an  unequivocal  consent  that  the 
general  property  should  be  considered  vested  in  the  purchaser.  The 
painting  of  the  name  upon  the  stern,  the  only  act  there,  pledged  the 
builder  to  nothing;  it  expressed  an  intention  that  the  barge  should  be 
Pocock's,  but  it  did  no  more.  He  might  change  that  intention  and 
obliterate  the  name.  But  the  signing  of  the  certificate,  here,  to  the 
intent  that  the  defendant  might  obtain  a  registry  in  his  own  name, 
was  a  consent  that  what  was  necessary  to  enable  the  defendant  to  ob- 
tain such  registry  should,  as  between  them,  be  considered  as  com- 
plete, and  that,  as  the  defendant  would  have  to  swear  that  he  was 
sole  owner  of  the  ship,  the  ownership  should  be  considered  his.  We 
are,  therefore,  of  opinion,  that  the  assignees,  who  claim  under  Paton, 
are  bound  equally  with  him ;  and,  as  this  is  not  a  case  within  the  stat- 
ute of  James,  the  plaintiffs  are  not  entitled  to  recover  the  general 
value  of  the  ship.  And  as  to  the  rudder  and  cordage,  as  they  were 
bought  by  Paton  specifically  for  this  ship,  though  they  were  not  ac- 
tually attached  to  it  at  the  time  his  act  of  bankruptcy  was  committed, 
they  seem  to  us  to  stand  upon  the  same  footing  with  the  ship,  and  that, 
if  the  defendant  was  entitled  to  take  the  ship,  he  was  also  entitled  to 
take  the  rudder  and  cordage,  as  parts  thereof. 

Upon  the  last  question,  however,  we  are  of  opinion  against  the  de- 
fendant. Though  the  general  ownership  was  vested  in  the  defendant, 
the  possession  remained  with  Paton;  and  as  the  bills  for  the  third 
and  fourth  instalments  were  to  be  given  at  the  launching  of  the  ship, 
(when  launched,)  Paton,  had  he  completed  tHe  ship,  would  have  had 
a  lien  upon  it  till  those  bills  were  given ;   and  as  the  defendant  thought 


i 


Sec.  6)         UNASCERTAINED  GOODS APPROPRIATION  81 

fit  to  take  the  ship  before  it  was  complete,  after  having  given  bills 
for  the  first  three  instalments  only,  we  think  he  ought  to  have  given 
a  bill  for  so  much  of  the  fourth  instalment  as,  according  to  the  value 
of  what  remained  to  be  done,  Paton  was  entitled  to  receive ;  and  that, 
unless  what  remained  to  be  done  would  be  equal  to  the  whole  of  the 
fourth  instalment,  his  taking  the  ship,  without  giving  or  tendering  such 
a  bill,  was  a  wrongful  taking.  We  are,  therefore,  of  opinion,  that, 
according  to  the  provision  made  in  that  respect  in  the  case,  it  ought  to 
be  referred  to  Mr.  Bainbridge  and  Mr.  Clayton,  and  such  third  person 
as  they  shall  appoint,  to  take  an  account  of  the  want  of  materials 
stipulated  to  be  provided  by  Paton  not  on  board,  and  the  fair  expense 
of  launching,  and  to  enter  the  verdict  accordingly.  If  the  want  of 
materials,  and  the  expense  of  launching  shall  amount  to  £750,  the  ver- 
dict to  be  entered  for  the  defendant;  if  it  shall  amount  to  less  than 
£750,  a  verdict  for  the  difference  to  be  entered  for  the  plaintiff. 
Judgment  accordingly.-^ 


JOHNSON  V.  HUNT. 
(Supreme  Court  of  New  York.  1S34.     11  Wend.  1.35.) 

This  was  an  action  of  replevin,  tried  at  the  Albany  circuit  in  Sep- 
tember, 1831,  before  the  Hon.  James  Vanderpoel,  one  of  the  circuit 
judges. 

On  the  21st  August,  1829,  a  contract  was  entered  into  by  which  the 
defendant  agreed  to  build  a  house  for  the  plaintiff,  finding  the  ma- 
terials for  the  wood  work  and  doing  the  work,  and  engaging  to  com- 
plete the  job  by  the  1st  May,  1830.  The  plaintiff,  on  his  part,  engaged 
to  pay  for  the  same  $1525,  in  manner  following:  when  the  timber 
should  be  delivered  on  the  ground  for  framing,  $100 ;  when  the  frame 
should  be  raised,  $200;  on  the  first  of  December,  $150;  the  like  sum 
on  the  first  day  of  each  of  the  four  succeeding  months,  "provided  the 
work  shall  advance  according  to  the  payments  made ;"  making  $1050 
to  be  paid  by  the  first  day  of  April,  and  the  remainder,  viz.  $475, 
when  the  house  shall  be  finished.  After  the  house  was  enclosed,  the 
defendant  worked  plank  belonging  to  him  into  eight  columns  for 
piazzas,  one  half  of  which  were  intended  for  the  house  building  for 
the  plaintiff,  and  the  other  half  for  a  house  which  the  defendant  was 
then  building  for  a  Mr.  Earl.  These  columns  were  worked  in  the 
house  building  for  the  plaintiff,  and  to  make  room  for  the  masons  to 
do  their  work,  the  columns  were  removed  to  the  store  of  a  Mr.  Bur- 
rows. The  defendant  also  procured  and  deposited  in  the  same  store 
four  carved  capitals  and  three  bases  for  the  columns,  and  six  carved 
window  and  door  caps.     After  a  barn  was  enclosed,  which  the  de- 

2  2  See  Wood  v.  Bell,  5  E.  &  B.  772  (1S56). 
WooDW.  Sales — 6 


82  UNASCERTAINED    GOODS — APPROPRIATION  (Ch.  2 

fendant  was  building  for  the  plaintiff  on  the  same  lot  on  which  the 
house  was  erected,  the  columns  and  other  materials  were  removed 
thereto,  and  subsequently  four  of  the  columns  were  taken  therefrom 
and  used  in  the  erection  of  Earl's  house.  The  other  columns  and 
the  carved  work  remained  in  the  barn  until  June  or  July,  1830,  when 
the  (defendant  broke  open  the  barn  and  took  and  carried  them  away. 
For  this  property  the  action  was  brought. 

The  plaintiff  proved  payments  made  by  him  to  the  defendant,  to 
the  amount  of  $1700,  and  that  the  defendant,  about  two  weeks  pre- 
vious to  taking  the  property  from  the  barn,  abandoned  the  job  he  had 
undertaken,  saying  he  would  not  work  any  more  at  it,  unless  the 
plaintiff  would  pay  him  more  money.  It  was  proved  on  the  part  of 
the  defendant,  in  pursuance  of  a  notice  attached  to  his  plea,  that  on 
the  5th  May,  1830,  while  the  property  in  question  remained  in  the 
store  of  Burrows,  it  was  levied  upon  by  a  deputy  of  the  sheriff  of 
Albany,  by  virtue  of  an  execution  against  the  defendant  for  the  sum 
of  $556,  who  left  the  same  in  the  possession  of  the  defendant.  The 
value  of  the  property  was  testified  to.  The  judge  ruled  that  the 
plank  from  which  the  columns  were  worked,  though  purchased  by 
the  defendant,  became  the  property  of  the  plaintiff  when  the  same 
were  delivered  upon  the  plaintiff's  lot;  and  though  the  lumber  used 
in  preparing  the  columns  in  question  had  not  been  separated  from 
that  used  in  preparing  the  columns  for  Earl's  house  at  the  time  of 
the  levy,  yet  that  it  was  subsequently  separated,  and  that  it  was  rea- 
sonable to  presume  that  the  defendant  intended  it  for  the  house  of 
the  plaintiff;  and  as  to  the. carved  work,  that  though  it  had  been  de- 
livered upon  the  premises  of  the  plaintiff  at  the  time  of  the  levy,  still 
it  had  been  procured  for  the  plaintift''s  house,  and  immediately  upon 
its  being  so  procured,  and  before  a  delivery  upon  the  premises  of  the 
plaintiff,  it  became  the  property  of  the  plaintiff.  To  which  decision 
the  defendant  excepted.  The  jury,  under  the  charge  of  the  judge, 
found  a  verdict  for  the  plaintiff,  which  the  defendant  now  moved 
to  set  aside. 

Savage,  C.  J.  By  the  contract,  the  defendant  was  to  procure  the 
materials  and  build  the  house  for  the  plaintiff.  The  materials  were 
purchased  by  the  defendant,  were  his  own,  and  at  his  risk.  The  fact 
that  such  materials  were  intended  for  the  plaintiff's  house  did  not 
change  the  property.  Had  the  defendant  acted  as  the  plaintiff's  agent 
in  purchasing  the  materials,  then  indeed  the  property  would  have 
been  the  plaintiff's.  The  contract,  however,  does  not  give  counte- 
nance to  any  such  idea,  nor  was  such  a  construction  contended  for. 
The  judge  at  the  circuit  held  that  the  property  was  vested  in  the  plain- 
tiff by  the  act  of  the  defendant  in  purchasing  it,  intending  to  work  it 
into  the  plaintiff's  house.  In  this  the  judge  certainly  erred.  When 
the  defendant  purchased  the  property,  it  became  his  own ;  he  might 
sell  it  again,  and  purchase  other  materials  to  use  in  the  plaintiff's 
house,  and  if  he  procured  such  as  the  contract  required,  the  plaintiff" 


Sec.  6)  UNASCERTAINED    GOODS APPROPRIATION  83 

could  not  complain.  Suppose  he  had  purchased  plank  which  were 
rotten  and  totally  unfit  for  the  use,  but  still  intending  them  for  the 
plaintiff's  house,  the  plaintiff  would  not  be  bound  to  receive  them.  Or 
suppose  the  plank  were  purchased  in  Troy  or  Albany,  or  at  the  mill 
where  manufactured,  and  before  they  were  removed  a  fire  had  de- 
stroyed them,  would  the  plaintiff  say  the  loss  was  his?  If  the  prop- 
erty was  ever  in  the  defendant,  when  was  it  changed?  As  personal 
property,  clearly  it  did  not  pass  until  delivery,  and  there  is  no  evidence 
in  the  case  of  a  delivery  by  the  defendant,  or  the  receipt  of  it  by  the 
plaintiff.  It  was  not  intended  by  the  contract  that  it  should  pass  as 
personal  property ;  it  was  to  become  the  property  of  the  plaintiff  when 
it  was  worked  into  his  house  and  not  before. 

The  mere  act  of  bringing  the  plank  upon  the  plaintiff's  lot,  for  the 
purpose  of  working  it  into  columns,  did  not  change  the  property ;  nor 
did  the  act  of  working  the  plank  into  pieces  to  put  up  have  that  ef- 
fect, for  we  see  the  same  defendant,  at  the  same  time  and  place, 
working  up  other  plank  of  the  same  lot  into  materials  for  columns 
for  Earl's  house.  If  the  act  of  working  the  plank  in  the  plaintiff's 
house  made  them  his  property,  then  he  owned  the  whole ;  but  that 
is  not  pretended.  If  the  working  them  with  intent  to  put  them  up 
in  the  plaintiff's  house  made  them  his,  then  the  intent  changed  the 
property,  without  any  act  by  either  of  the  contracting  parties.  That 
would  be  a  very  unsafe  rule  of  property.  The  property  of  one  man 
does  not  become  the  property  of  another,  unless  by  some  act  indicat- 
ing a  delivery  by  one  and  an  acceptance  by  the  other.  Had  the  prop- 
erty in  question  been  burned  when  in  Burrows'  store,  and  had  the 
defendant  been  perfectly  solvent,  I  presume  the  plaintiff  would  not 
have  considered  the  loss  his  own ;  surely  the  law  would  not  so  have 
adjudged  it.  Where  any  thing  remains  to  be  done  by  the  vendor  be- 
fore the  article  is  to  be  delivered,  the  right  of  property  does  not  pass. 
Ward  v.  Shaw,  7  Wend.  406,  and  cases  there  cited.  Here  the  columns 
were  to  be  put  together  and  erected  before  they  became  the  plaintiff's. 

In  the  case  of  Mucklow  v.  Mangles,  1  Taunt.  319,  a  boat  builder 
contracted  to  build  a  barge  for  one  Pocock,  and  received  payment  in 
advance.  He  finished  the  barge  and  painted  Pocock's  name  on  the 
stern ;  but  before  delivery,  it  was  levied  on  by  the  sheriff,  under  an 
execution  against  the  boat  builder.  It  was  held  that  the  property  had 
not  passed  to  Pocock.  Heath,  J.,  says  it  comes  within  the  cases  which 
have  been  held  to  be  executory.  He  adds :  "A  tradesman  often 
finishes  goods  which  he  is  making  in  pursuance  of  an  order  given  by 
one  person,  and  sells  them  to  another;  yet  the  person  giving  the  or- 
der could  not  bring  trover." 

The  case  of  Merritt  v.  Johnson,  7  Johns.  473,  5  Am.  Dec.  289,  was 
a  stronger  case  than  Mucklow  v.  Mangles.  One  Travis  agreed  to 
build  a  sloop  for  E.  Merritt,  and  to  furnish  the  timber  for  the  same. 
Travis  partly  finished  the  sloop,  furnishing  the  greater  part  of  the  ma- 
terials ;  but  D.  Merritt,  the  plaintiff  to  whom  the  contract  was  assign- 


84  UNASCERTAINED   GOODS — APPROPRIATION  (Ch.  2 

ed  by  E.  IMerritt,  also  furnished  part  of  the  materials  and  advanced 
money  to  Travis  on  the  contract.  When  the  vessel  was  about  one 
third  finished,  it  was  levied  on  under  an  execution  against  Travis. 
The  plaintiff  brought  an  action  of  trover  for  the  vessel,  but  the  court 
said  that  his  right  of  action  rested  on  the  contract  with  Travis,  and 
that  the  sloop  did  not  become  his  until  finished  and  delivered.  The 
court  take  notice  of  the  fact  that  the  sloop  was  built  upon  ground  hir- 
ed by  Travis;  but  had  the  fact  been  difl^erent,  I  do  not  see  how  the 
result  would  have  been  varied  under  the  contract  in  that  case,  by 
which  Merritt  was  to  pay  as  the  work  progressed,  leaving  one  third 
to  be  paid  when  the  whole  of  the  work  was  finished. 

In  this  case  there  could  not  be  a  formal  delivery  of  the  house  after 
it  was  finished;  the  house,  standing  on  the  plaintiff's  ground,  became 
his  as  fast  as  the  parts  added  to  it  became  attached,  so  as  to  become 
part  of  the  freehold,  but  with  that  difference,  the  case  of  the  sloop 
is  not  distinguishable  in  principle.  The  sloop  was  personal  prop- 
erty, and  therefore  the  property  was  not  changed  until  delivery.  The 
house  in  question  was  real  property,  but  the  materials  of  which  it  wa^' 
composed  were  personal  property,  and  did  not  pass  to  the  plaintiff 
until  delivery,  or  until  they  became  afiixed  to  the  freehold;  at  the 
time  of  the  levy,  they  were  the  property  of  Hunt,  the  defendant. 
The  plaintiff  therefore  had  no  title,  and  could  not  recover  upon  the 
evidence  before  the  court. 

New  trial  granted;  costs  to  abide  the  event. 


ANDREWS  et  al.  v.  DURANT  et  al. 
(Court  of  Appeals  of  New  York,  1S54.     11  N.  Y.  35,  G2  Am.  Dec.  55.) 

Appeal  from  a  judgment  of  the  general  term  of  the  supreme  court 
held  in  Albany  county.  The  plaintiffs  brought  an  action  in  the  na- 
ture of  trover  for  a  barge  in  an  unfinished  state,  which  they  alleged 
the  defendants  had  converted  to  their  own  use.  The  defendants  de- 
nied the  allegations  in  the  complaint,  and  set  up  title  to  the  barge  in 
themselves.  The  cause  was  tried  before  the  Hon.  M.  Watson,  a  jus- 
tice of  the  supreme  court,  in  April,  1850,  without  a  jury.  The  fol- 
lowing facts  appeared  on  the  trial : 

On  the  24th  April,  1849,  the  defendants  entered  into  a  contract, 
in  writing,  with  William  H.  Bridger  &  Co.,  ship-builders,  by  which 
the  latter  agreed  "to  build"  for  the  defendants,  for  the  sum  of  $5000, 
a  barge  of  certain  dimensions  and  with  a  certain  size  and  description 
of  timbers,  &c.  which  were  particularly  specified,  except  the  rail, 
which  was  to  be  "according  to  direction  of  superintendent."  The 
further  provisions  of  the  contract  were  as  follows : 

"All  the  materials  to  be  furnished  by  the  builder,  and  all  to  be  of 
the  first  quality,  and  the  work  subject  to   the   superintendent,   who 


Sec.  G)         UNASCERTAINED  GOODS APPROPRIATION  85 

shall  have  the  privilege  of  rejecting  any  timber  he  may  think  is  not 
suitable,  and  object  to  any  work  not  done  in  a  workmanlike  manner. 
The  model  of  the  boat  to  be  made  like  barge  I.  L.  Brown.  The  boat 
to  be  furnished  complete,  and  ready  for  the  ship  chandler  according 
to  the  above  specification  on  the  first  day  of  August  next,  and  deliv- 
ered to  Durant,  Lathrop  &  Co.  [the  defendants]  at  Kingston.  In 
case  the  barge  is  not  complete  by  the  time  specified  above,  or  within 
ten  days  of  that  time,  W.  H.  Bridger  &  Co.  agree  to  forfeit  two 
hundred  and  fifty  dollars  for  every  week's  delay.  Payment:  The 
said  five  thousand  dollars  to  be  paid  as  follows,  viz.,  one  thousand 
dollars  when  keel  is  laid — one  thousand  dollars  when  frame  is  up — one 
thousand  dollars  when  planked  and  calked,  and  two  thousand  dollars 
when  completed  and  delivered." 

Bridger  &  Co.  proceeded  in  the  construction  of  the  barge  until  the 
4th  day  of  August,  1849,  when,  having  stopped  payment,  they  assign- 
ed the  unfinished  vessel  with  their  other  property,  to  the  plaintiffs  as 
trustees  for  the  benefit  of  their  creditors,  according  to  certain  classes 
of  preference.  The  barge  had  been  so  far  advanced  in  its  construc- 
tion as  to  be  planked,  and  the  defendants  had  paid  the  builders  three 
thousand  dollars  according  to  the  contract,  that  is  to  say,  one  thousand 
dollars  at  each  of  the  three  separate  stages  of  the  work  first  referred 
to  in  the  contract,  when  the  builders  failed.  The  defendants  having 
obtained  possession  of  the  barge,  proposed  to  the  plaintiffs  to  finish  it, 
and  offered  in  that  event  to  pay  them  the  balance  of  the  contract  price, 
but  this  was  declined ;  and  the  plaintiffs  demanded  the  barge  of  the 
defendants,  who  would  not  give  it  up.  The  defendants  then  procured 
it  to  be  completed  on  their  own  account,  at  an  expense  of  seven  hun- 
dred dollars.  The  person  who  acted  as  superintendent  in  the  build- 
ing of  the  barge  was  sworn,  and  testified  that  he  was  employed  ex- 
clusively by  the  defendants  and  was  paid  by  them. 

Judgment  was  rendered  by  Justice  Watson  in  favor  of  the  defend- 
ants, and  the  plaintiffs  excepted ;  it  was  afffrmed  at  the  general 
term.     The  plaintiffs  appealed  to  this  court. 

Denio,  J.  In  general  a  contract  for  the  building  of  a  vessel  orj 
other  thing  not  yet  in  esse  does  not  vest  any  property  in  the  party  fori 
whom  it  is  agreed  to  be  constructed  during  the  progress  of  the  work,l 
nor  until  it  is  finished  and  delivered,  or  at  least  ready  for  delivery  andj 
approved  by  such  party.  All  the  authorities  agree  in  this.  Towers 
v.  Osborne,  1  Stra.  506;  Mucklow  v.  Mangles,  1  Taunt.  318;  John- 
son V.  Hunt.  11  Wend.  139;  Crookshank  v.  Burrell,  18  Johns.  58,  9 
Am.  Dec.  187:  Sewall  v.  Fitch,  8  Cow.  215;  Mixer  v.  Howarth,  21 
Pick.  (Mass.)  205,  32  Am.  Dec.  256.  And  the  law  is  the  same  though 
it  be  agreed  that  payment  shall  be  made  to  the  builder  during  the 
progress  of  the  work,  and  such  payments  are  made  accordingly.  In 
Mucklow  V.  Mangles,  which  arose  out  of  a  contract  for  building  a 
barge,  the  whole  price  was  paid  in  advance,  the  vessel  was  built  and 
the  name  of  the  person   who  contracted   for  it  was  painted   on  the 


86  UNASCERTAINED  GOODS — APPROPRIATION         (Ch.  2 

Stern,  yet  it  was  held  that  the  title  remained  in  the  builder.  In  Mer- 
ritt  V.  Johnson,  7  Johns.  (N.  Y.)  473,  5  Am.  Dec.  289,  where  a  sloop 
was  agreed  to  be  built  and  one-third  of  the  price  was  to  be  paid  when 
one-third  of  the  work  was  done,  two-thirds  when  two-thirds  were 
done,  and  the  balance  when  it  was  completed,  and  before  it  was 
finished  it  was  sold  on  execution  against  the  builder  after  more  than 
a  third  had  been  done  and  more  than  that  proportion  of  the  price  had 
been  paid,  the  court  decided  that  the  vessel  was  the  property  of  the 
builder  and  not  of  the  person  who  engaged  it  to  be  constructed. 

W'here,  during  the  course  of  the  transaction,  the  vessel  or  other 
thing  agreed  to  be  built  is  identified  and  appropriated  so  that  the 
mechanic  would  be  bound  to  complete  and  deliver  that  particular 
thing,  and  could  not,  without  violating  his  contract,  substitute  another 
similar  article  though  otherwise  corresponding  with  the  agreement, 
there  would  seem  to  be  more  reason  for  holding  that  the  property  was 
transferred ;  still  it  has  never  been  held  that  this  was  enough  to  pass 
the  title.  In  Laidler  v.  Burlinson,  2  Mees.  &  Wels.  602.  the  vessel 
was  about  one-third  built  when  the  contract  was  made.  The  builder 
and  owners  agreed  to  finish  that  particular  vessel  in  a  manner  spe- 
cially agreed  upon  for  a  price  which  was  the  equivalent  for  the  fin- 
ished vessel.  Before  it  was  completed  the  builder  became  bankrupt, 
and  the  possession  passed  into  the  hands  of  his  assignee.  The  Court 
of  Exchequer  held  the  true  construction  of  the  contract  to  be  that 
the  title  was  to  pass  when  the  ship  was  completed  and  not  before. 
The  parties  only  agreed  to  buy  a  particular  ship  when  complete,  and 
although  the  builder  could  not  comply  with  the  contract  by  delivering 
another  ship,  still  it  was  considered  an  executory  contract  merely.  In 
Atkinson  v.  Bell,  8  Barn.  &  Cress.  277,  the  same  principle  was  held  in 
respect  to  a  contract  for  making  spinning  machinery,  and  in  Clarke 
v.  Spence,  4  Adol.  &  Ellis,  448,  which  is  the  case  principally  relied 
on  by  the  defendants,  it  w^as  admitted  by  the  court  that  the  appropria- 
tion of  the  particular  ship  to  the  contract  then  in  question,  by  the  ap- 
proval of  the  materials  and  labor  by  the  superintendent,  did  not,  of 
itself,  vest  the  property  in  the  purchaser  until  the  whole  thing  con- 
tracted for  had  been  completed. 

In  the  case  before  us,  it  cannot  be  denied  but  that  the  barge,  as  fast 
as  its  several  parts  were  finished  with  the  approval  of  the  superintend- 
ent, became  specifically  appropriated  to  the  fulfilment  of  this  contract, 
so  that  Bridger  &  Co.  could  not  have  fulfilled  their  agreement  with 
the  defendants  in  any  other  way  than  by  completing  and  delivering 
that  identical  boat.  This  results  from  the  consideration  that  the  su- 
perintendent could  not  be  called  upon  to  inspect  and  approve  of  the 
work  and  materials  of  another  barge,  after  having  performed  that 
duty  as  to  one ;  so  that  the  contract  would  be  broken  up  unless  it  ap- 
plied itself  to  this  vessel.  But  it  is  clear  that  this  circumstance  alone 
does  not  operate  to  transfer  the  title.  The  precise  question  in  this 
case  is  whether  the  concurrence  of  both  particulars — the  payment  of 


Sec.  6)  UNASCERTAINED   GOODS APPROPRIATION  87 

parts  of  the  price  at  specified  stages  of  the  work,  and  the  interven- 
tion of  a  superintendent  to  inspect  and  approve  of  the  work  and  ma- 
terials— produces  a  result  which  neither  of  them  separately  would  ef- 
fect. It  is  no  doubt  competent  for  the  parties  to  agree  when  and  up- 
on what  conditions  the  property  in  the  subject  of  such  a  contract  shall 
vest  in  the  prospective  owner.  The  present  question  is,  therefore, 
simply  one  of  construction.  The  inquiry  is  whether  the  parties  in- 
tended by  the  provisions  which  they  have  inserted  in  their  contract, 
that  as  soon  as  the  first  payment  had  become  payable  and  had  been 
paid,  the  property  in  the  unfinished  barge  should  vest  in  the  defend- 
ants, so  that  thereafter  it  should  be  at  their  risk  as  to  casualties,  and 
be  liable  for  their  debts,  and  passed  to  their  representatives  in  case 
of  their  death.  Such  an  agreement  would  be  lawful  if  made,  and  the 
doubt  only  is  whether  the  parties  have  so  contracted. 

The  courts  in  England,  under  contracts  in  all  material  respects  like 
this  have  held  that  the  title  passed.  In  Woods  v.  Russell,  5  Barn.  & 
Aid.  942,  the  question  came  before  the  Court  of  King's  Bench,  and 
Abbott,  C.  J.,  distinctly  declared  his  opinion  that  the  payment  of  the 
installments  under  such  a  contract  vested  the  property  in  the  ship  in 
the  party  for  whom  it  was  to  have  been  constructed.  But  there  was 
another  feature  in  the  case  upon  which  it  was  finally  decided.  The 
builder  had  signed  a  certificate  for  the  purpose  of  enabling  the  other 
party  to  procure  the  vessel  to  be  registered  in  his  name  and  it  was 
so  registered  accordingly  while  it  was  yet  unfinished  and  before  the 
question  arose.  The  court  held  that  the  legal  efifect  of  signing  the 
certificate  for  the  purpose  of  procuring  the  registry  was,  from  the 
time  the  registry  was  complete,  to  vest  the  general  property  in  the 
party  contracting  to  have  the  ship  built.  This  case  was  decided  in 
1822,  and  was  the  first  announcement  of  the  principle  upon  which  the 
defendant's  counsel  rely  in  the  English  courts. 

The  case  of  Clarke  v.  Spence  was  decided  in  1836.  It  arose  out  of 
a  contract  for  building  a  vessel,  which  contained  both  the  features 
of  superintendence  and  of  payments  according  to  specific  stages  of  the 
work,  as  in  Woods  v.  Russell,  and  as  in  the  contract  now  before  the 
court.  The  Court  of  King's  Bench  was  clearly  of  opinion  that  as 
fast  as  the  different  parts  of  the  vessel  were  approved  and  added  to 
the  fabric  they  became  appropriated  to  the  purchaser  by  way  of  con- 
tract, and  that  when  the  last  of  them  were  so  added  and  the  vessel 
was  thereby  completed  it  vested  in  the  purchaser.  The  court  con- 
ceded that  by  the  general  rules  of  law,  until  the  last  of  the  necessary 
materials  was  added  the  thing  contracted  for  was  not  in  existence ; 
and  they  said  they  had  not  been  able  to  find  any  authority  for  holding 
that  while  the  article  did  not  exist  as  a  whole  and  was  incomplete, 
the  general  property  in  such  parts  of  it  as  had  been  from  time  to  time 
constructed  should  vest  in  the  purchaser,  except  what  was  said  in 
the  case  of  Woods  v.  Russell ;  and  that  was  admitted  to  be  a  dictum 
merely,  and  not  the  point  on  which  the  case  was  decided.    The  court, 


II 


88  UNASCERTAINED    GOODS APPROPRIATION  (Ch.  2 

however,  decided  upon  the  authority  of  that  case,  though  with  some 
hesitation,  as  they  said,  that  the  rights  of  the  parties  in  the  case  be- 
fore it,  after  the  making  of  the  first  payment,  were  the  same  as  if  so 
much  of  the  vessel  as  was  then  constructed  had  originally  belonged 
to  the  party  contracting  for  its  construction  and  had  been  delivered 
by  him  to  the  builder  to  be  added  to  and  finished ;  and  they  said  it 
would  follow  that  every  plank  and  article  subsequently  added  would, 
as  added,  become  the  property  of  the  party  contracting  with  the 
builder. 

The  dictum  in  ^Voods  v.  Russell  was  incidentally  referred  to  as  the 
law  in  Atkinson  v.  Bell,  8  Barn.  &  Cress.  277,  and  the  doctrine  there 
stated,  and  confirmed  in  Clarke  v.  Spence,  was  assumed  to  be  correct 
in  Laidler  v.  Burlinson  before  referred  to.  It  has  also  been  generally 
adopted  by  systematic  writers  in  treatises  published  or  revised  since 
the  decision  of  Clarke  v.  Spence,  that  case  and  Woods  v.  Russell  be- 
ing always  referred  to  as  the  authoritv  on  which  it  rests.  Story  on 
Sales,  §§315,  316;   Chit,  on  Cont.  378,  "379;  Abbott  on  Shipping,  4,  5. 

It  is  scarcely  necessary  to  say  that  the  English  cases  since  the  Revo- 
lution are  not  regarded  as  authority  in  our  courts.  Upon  disputed 
doctrines  of  the  common  law  they  are  entitled  to  respectful  considera- 
tion ;  but  where  the  question  relates  to  the  construction  or  effect  of  a 
written  contract  they  have  no  greater  weight  than  may  be  due  to  the 
reasons  given  in  their  support.  Can  it  then  be  fairly  collected  from 
the  provisions  of  this  contract,  that  the  title  to  the  unfinished  barge 
was  to  be  transferred  from  the  builder  to  the  other  party  upon  the 
making  of  the  first  payment,  contrary  to  the  principle  well  settled  and 
generally  understood,  that  a  contract  for  the  construction  of  an  arti- 
cle not  in  existence  is  executory  until  the  thing  is  finished  and  ready 
for  delivery? 

In  the  first  place  I  should  say  that  so  marked  a  circumstance  would 
be  stated  in  words  of  unequivocal  import ;  and  would  not  be  left  to 
rest  upon  construction,  if  a  change  of  property  was  really  intended. 
The  provision  for  superintendence  by  the  agent  of  the  intended  own- 
er, though  it  serves  to  identify  and  appropriate  the  article  as  soon  as 
its  construction  is  commenced,  does  not,  as  we  have  seen,  work  any 
change  of  property.  Such  would  not  ordinarily  be  the  intention  to  be 
deduced  from  such  a  circumstance.  INIany  of  the  materials  of  which 
a  vessel  is  composed  are  ultimately  covered  so  as  to  be  concealed 
from  the  eye  when  it  is  finished ;  and  as  the  safety  of  life  and  prop- 
erty is  concerned  in  the  soundness  and  strength  of  these  materials, 
it  is  but  a  reasonable  precaution  to  be  taken  by  one  who  engages  a 
vessel  to  be  constructed,  to  ascertain  as  the  work  progresses  that  every 
thing  is  staunch  and  durable ;  and  such  a  provision,  as  it  seems  to  me, 
does  not  tend  to  show  a  design  that  there  shall  be  a  change  of  proper- 
ty as  fast  as  any  materials  or  work  are  inspected  and  approved.  It 
amounts  only  to  an  agreement  that  when  the  whole  is  completed  the 
party  will  receive  it  in  fulfilment  of  the  contract.     The  provision  for 


Sec.  6)         UNASCERTAINED  GOODS APPROPRIATION  89 

advances  at  particular  stages  of  the  work  is  a  very  usual  one  where 
an  expensive  undertaking  is  contracted  for,  and  it  only  shows  that 
the  party  advancing  is  willing  thus  to  assist  the  artisan,  provided  that 
he  can  see  that  the  work  is  going  on  in  good  faith,  so  as  to  afford  a 
reasonable  prospect  that  he  will  realize  the  avails  of  his  expenditure 
in  a  reasonable  period. 

The  argument  for  the  defendants  would  be  somewhat  stronger  if 
we  could  say  that  the  amount  to  be  advanced  at  the  several  stages 
mentioned  was  understood  by  the  parties  to  be  the  price  or  equivalent 
for  the  labor  and  materials  already  expended.  This  by  no  means  ap- 
pears, but  on  the  contrary  there  is  strong  reason  to  believe  that,  in 
this  case,  a  considerable  portion  of  the  price  was  to  be  at  all  times 
kept  back,  in  order  to  secure  the  speedy  completion  of  the  contract. 
When  Bridger  &  Co.  failed  only  $3,000  of  the  $5,000  had  been  paid, 
and  they  would  not  be  entitled  to  any  more  until  the  barge  was  fin- 
ished, and  yet  it  cost  only  $700  to  complete  it.  This  renders  it  im- 
probable that  the  parties  could  have  intended  the  sale  and  purchase  of 
so  much  as  was  done  at  the  several  stages  of  the  work  at  which  pay- 
ments were  to  be  made,  if  indeed  such  a  contract  were  not  in  itself 
so  much  out  of  the  course  of  the  ordinary  conduct  of  parties  as  not 
to  be  assumed  without  unequivocal  language. 

The  decision  in  Clarke  v.  Spence  is  placed  very  much  upon  the  idea 
that  parties  may  have  contracted  in  reference  to  the  doctrine  an- 
nounced in  Woods  v.  Russell.  That  argument  can  have  no  force  here, 
but  on  the  contrary  the  inference  to  be  drawn  from  our  own  cases 
and  particularly  from  Merritt  v.  Johnson  would  be,  that  the  title  re- 
mained in  the  builder  under  such  a  contract  until  the  completion  of 
the  vessel. 

The  foregoing  considerations  have  led  me  to  the  conclusion  that 
the  modern  English  rule  is  not  founded  upon  sufficient  reasons,  and 
that  it  ought  not  to  be  followed.  The  judgment  of  the  Supreme  Court 
should,  therefore,  be  reversed  and  a  new  trial  ordered. 

Judgment  reversed  and  new  trial  ordered.-^ 


ATKINSON  et  al.  v.  BELT  et  al. 

(Court  of  Kind's  Bench,  1S2S.     8  Barn.  &  C.  277.) 

Assumpsit  for  goods  sold  and  delivered,  goods  bargained  and  sold, 
work  and  labor,  and  materials  found  and  provided.  At  the  trial,  be- 
fore Hullock,  B.,  at  the  Summer  assizes  for  Lancaster,  1827,  it  ap- 
peared that  the  defendants  were  linen  and  thread  manufacturers  at 
Whitehaven,  in  Cumberland.  The  bankrupt  Sleddon,  before  his  bank- 
ruptcy, was  a  machine-maker  residing  at  Preston,  in  Lancashire.  One 
Kay,  of  Preston,  obtained  a  patent  for  a  new  mode  of  spinning  flax, 

23A  concurring  opinion  was  delivered  by  Parlcer,  J. 


90  UNASCERTAINED  GOODS — APPROPRIATION         (Ch,  2 

and  the  defendants  being  desirous  of  trying  the  effect  of  it,  on  the 
12th  November,  1825,  by  letter  ordered  him  to  procure  to  be  made  for 
them  as  soon  as  possible  a  preparing  frame  and  two  spinning  frames, 
in  the  manner  he  most  approved  of.  In  January,  1826,  Kay  ordered 
two  spinning  frames  and  a  roving  frame  to  be  made  by  Sleddon  for 
the  defendants,  and  informed  them  that  he  had  so  done.  These  ma- 
chines were  formed  on  Kay's  first  plan,  and  completed  at  the  end  of 
March,  and  after  they  had  been  so  completed  they  lay  in  Sleddon's 
premises  a  month,  while  two  other  machines  of  these  defendants,  in- 
tended to  be  used  in  the  same  mills,  were  altered  by  Sleddon,  under 
Kay's  superintendence;  and  when  those  had  been  completed  to  his 
mind,  he  ordered  the  machines  in  question  to  be  altered  in  the  same 
manner.  They  were  altered  accordingly,  packed  in  boxes  by  Kay's 
direction,  and  remained  on  Sleddon's  premises.     On  the  23d  of  June, 

1 1826,  Sleddon  wrote  to  the  defendants,  and  informed  them  that  the 

[two  frames  had  been  ready  for  the  last  three  weeks,  and  begged  to 
know  by  what  conveyance  they  were  to  be  sent. 

On  the  8th  of  August,  a  commission  of  bankrupt  issued  against 
Sleddon,  under  which  he  was  duly  declared  a  bankrupt.  The  as- 
signees afterwards  required  the  defendants  to  take  the  frames,  but 
they  refused  to  do  so.  It  was  objected  on  the  part  of  the  defendants, 
that  the  action  was  not  maintainable  for  goods  bargained  and  sold,  be- 
cause the  property  in  the  frames  had  never  vested  in  the  defendants. 
The  learned  Judge  was  of  opinion  that  the  action  was  not  maintain- 
able, and  he  directed  a  nonsuit  to  be  entered,  with  liberty  to  the  plain- 
tiffs to  move  to  enter  a  verdict  for  the  price  of  the  machines.  A  rule 
nisi  having  been  obtained  for  that  purpose. 

Bayi^Ey,  J.  I  think  the  rule  for  entering  a  verdict  for  the  plaintiff 
ought  to  be  discharged.  If  the  declaration  had  contained  a  count  for 
not  accepting  the  machines,  the  plaintiffs  might  have  been  entitled  to 
recover;  and  I  think  now  that,  upon  payment  of  costs,  they  should  be 
allowed  to  set  aside  the  nonsuit,  and  add  other  counts  to  the  declara- 

i.tion,  and  have  a  new  trial.  But  I  cannot  say  that  the  property  pass- 
ed to  the  defendants,-  so  as  to  enable  the  plaintiffs  to  recover  on  the 

I  counts  for  goods  bargained  and  sold,  or  for  work  and  labor.  It  is 
said  that  there  was  an  appropriation  of  these  specific  machines  by 
the  maker,  and  that  the  property  thereby  vested  in  the  defendants.  I 
think  it  did  not  pass.  Where  goods  are  ordered  to  be  made,  while 
they  are  in  progress  the  materials  belong  to  the  maker.  The  property 
does  not  vest  in  the  party  who  gives  the  order  until  the  thing  ordered 
is  completed.  And  although  while  the  goods  are  in  progress  the 
flpaker  may  intend  them  for  the  person  ordering,  still  he  may  after- 
>^rds  deliver  them  to  another,  and  thereby  vest  the  property  in  that 
other.  Although  the  maker  may  thereby  render  himself  liable  to  an 
action  for  so  doing,  still  a  good  title  is  given  to  the  party  to  whom 
they  are  delivered.  It  is  true  that  Kay  saw  these  things  while  they 
were  in  progress,  and  knew  that  the  bankrupt  intended  them  for  the 


Sec.  6)         UNASCERTAINED  GOODS APPROPRIATION  91 

defendants ;  yet  they  might  afterwards  have  been  delivered  to  a  third 
person.  This  case  is  not  afifected  by  the  argument  that  these  are  pat- 
ent articles,  because  they  might  have  been  delivered  to  a  third  person 
with  Kay's  assent. 

The  case  of  Woods  v.  Russell,  5  B.  &  A.  942,  is  distinguishable. 
The  foundation  of  that  decision  was,  that  as  by  the  contract  given  por- 
tions of  the  price  were  to  be  paid  according  to  the  progress  of  the 
work,  by  the  payment  of  those  portions  of  the  price  the  ship  was  ir- 
revocably appropriated  to  the  person  paying  the  money.  That  was  a 
purchase  of  the  specific  articles  of  which  the  ship  was  made.  Be- 
sides, there  the  ship-builder  had  signed  the  certificate  to  enable  the 
purchaser  to  have  the  ship  reg"istered  in  his  name ;  the  legal  effect  of 
which  was  held  to  be  to  vest  the  general  property  in  the  purchaser. 
If  in  this  case  an  execution  had  issued  against  Sleddon,  the  sheriff 
might  have  seized  the  machines.  They  were  Sleddon's  goods,  al- 
though they  were  intended  for  the  defendants,  and  he  had  written  to 
tell  them  so.  If  they  had  expressed  their  assent,  then  this  case  would 
have  been  within  Rohde  v.  Thvvaites,  6  B.  &  C.  388,  and  there  would 
have  been  a  complete  appropriation  vesting  the  property  in  the  de- 
fendants. But  there  was  not  any  such  assent  to  the  appropriation 
made  by  the  bankrupt,  and  therefore  no  action  for  goods  bargained 
and  sold  was  maintainable. 

Then  as  to  the  counts  for  work  and  labor,  if  you  employ  a  man  to 
build  a  house  on  your  land,  or  to  make  a  chattel  with  your  materials, 
the  party  who  does  the  work  has  no  power  to  appropriate  the  produce 
of  his  labor  and  your  materials  to  any  other  person.  Having  be- 
stowed his  labor  at  your  request,  on  your  materials,  he  may  maintain 
an  action  against  you  for  work  and  labor.  But  if  you  employ  another 
to  work  up  his  own  materials  in  making  a  chattel,  then  he  may  appro- 
priate the  produce  of  that  labor  and  materials  to  any  other  person. 
No  right  to  maintain  any  action  vests  in  him  during  the  progress  of 
the  work ;  but  when  the  chattel  has  assumed  the  character  bargained 
for,  and  the  employer  accepted  it,  the  party  employed  may  maintain 
an  action  for  goods  sold  and  delivered ;  or,  if  the  employer  refuses  to 
accept,  a  special  action  on  the  case  for  such  refusal.  But  he  cannot 
maintain  an  action  for  work  and  labor,  because  his  labor  was  bestow- 
ed on  his  own  materials,  and  for  himself,  and  not  for  the  person  who 
employed  him.  I  think,  that  in  this  case  the  plaintiff  cannot  recover 
on  the  count  for  work  and  labor. 

LiTTLKDALi^,  J.  I  am  of  the  same  opinion.  Goods  bargained  and 
sold  will  not  lie  unless  there  be  a  sale.  There  could  not  be  any  sale 
in  this  case,  unless  there  was  an  assent  by  the  defendants  to  take  the 
articles.  Here  there  was  no  assent.  The  property  must  be  changed, 
to  make  the  action  maintainable.  If  the  property  had  been  changed, 
the  maker  could  not  have  delivered  these  machines  to  any  one  but  the 
defendants.  I  think,  however,  he  might  have  delivered  them  to  an- 
other, notwithstanding  any  thing  that  passed,  and  that  the  defendants 


92  UNASCERTAINED   GOODS APPROPRIATION  (Ch.  2 

could  not  have  maintained  trover  against  the  party  to  whom  they 
V  ere  delivered.  In  the  case  of  an  execution  or  a  bankruptcy,  these 
n.achines  must  have  been  treated  as  the  goods  of  the  maker.  As  to 
the  count  for  work  and  labor  and  materials,  the  labor  was  bestowed, 
and  the  materials  were  found,  for  the  purpose  of  ultimately  effecting 
a  sale,  and  if  that  purpose  was  never  completed,  the  contract  was  not 
executed,  and  then  work  and  labor  will  not  lie.  The  work  and  labor 
and  materials  were  for  the  benefit  of  the  machine-maker,  and  not  for 
the  Jefendants. 

Rule  absolute,  on  payment  of  costs."* 


JENNER  V.  SMITH. 

(Court  of  Common  Pleas,  1SC9.     L.  R.  4  C.  P.  270.) 

Actioi  for  goods  bargained  and  sold  and  goods  sold  and  delivered. 
Pleas:  Never  indebted,  payment,  and  payment  of  8s.  2d.  into  court. 
Replication,  taking  issue,  and  damages  ultra. 

The  cause  was  tried  before  Brett,  J.,  at  the  sittings  at  Westminster 
after  last  Michaelmas  Term.  The  facts  were  as  follows :  On  the 
14th  of  October,  1867,  the  plaintiff,  who  is  a  hop-merchant  in  Lon- 
don, met  the  defendant,  a  maltster  of  Devizes,  at  Weyhill  Fair,  Hants. 
The  defendant  wished  to  buy  of  the  plaintiff  four  pockets  of  Car- 
penter's Sussex  hops  which  the  plaintiff  had  there;  but,  as  the  plain- 
tiff had  already  sold  two  of  them,  he  proposed  to  sell  the  defendant  in 
lieu  of  them  two  pockets  of  Thorpe's  of  which  he  shewed  him  a  sam- 
ple, oft'ering  to  let  the  defendant  have  the  two  pockets  of  Carpenter's 
at  i9.  per  cwt.  (the  price  of  that  day's  fair  being  £9.  9s.),  if  he  would 
take  two  pockets  of  Thorpe's  at  il .  15s.  per  cwt.  The  plaintiff  at 
the  same  time  or  shortly  after  informed  the  defendant  that  the  last- 
mentioned  two  pockets  were  lying  at  Prid  &  Son's  \\'arehouse,  Ken- 
tish Buildings,  Southwark,  and  agreed  that  he  should  have  them  upon 
the  same  terms  as  if  they  had  been  in  bulk  at  the  fair,  that  is,  that 
he  should  be  at  no  expense  for  warehousing  or  carriage.  The  de- 
fendant consented  to  purchase  the  four  pockets  upon  these  terms,  and 
took  away  with  him  the  two  pockets  of  Carpenter's,  but  requested  that 
the  two  pockets  of  Thorpe's  should  not  be  sent  until  he  wrote  for 
them. 

The  plaintiff  had  at  this  time  three  pockets  of  Thorpe's  hops  at  the 
warehouse  of' Prid  &  Son.  On  the  21st  of  October,  the  plaintiff's  son 
went  to  the  warehouse,  and  instructed  the  warehouseman  to  set  apart 
two  of  the  three  pockets  of  Thorpe's  for  the  defendant;  and  the  ware- 
houseman thereupon  placed  on  two  of  them,  numbered  respectively 
1  and  3,  what  is  called  a  "wait  order  card,"  that  is,  a  card  upon  which 

2  4A  concurring  opinion  was  delivered  by  Holroyd,  J. 

For  a  criticism  of  this  case,  see  Benjamin,  Sales  (5th  Eng.  Ed.)  p.  3G0. 


Sec.  6)         UNASCERTAINED  GOODS APPROPRIATION  93 

was  written,  "To  wait  orders,"  and  the  name  of  the  vendee.  No 
alteration,  however,  was  made  in  the  warehouse  books ;  and  the  plain- 
tiff, the  original  depositor,  still  remained  liable  for  the  rent. 

On  the  4th  of  November,  the  plaintiff  sent  the  defendant  an  in- 
voice, as  follows,  at  the  same  time  inclosing  a  draft  for  acceptance : 

"Mr.  S.  Smith,  Bought  of  Charles  Jenner. 

2  pockets  Sussex  hops  (Carpenter,  1S67). 

No.  2 1  cwt.  2  qrs.  26  lbs. 

4 1  cwt.  2  qrs.  13  lbs. 


3  cwt.  1     qr.  11  lbs.  at  £9.  per  cwt £30.  2.  8 

2  pockets  Sussex  hops  (Thorpe,  1867). 
No.  1.  ..  .   1  cwt.  2  qrs.  27  lbs. 
3 1  cwt.  0     qr.  21  lbs. 


2  cwt.  3qrs.  20  lbs.   at  £7.  15s.  per  cwt 22.13.10 

£52.16.  6 

"The  two  last  pockets  of  hops  are  lying  to  your  order." 

On  the  8th  of  November  the  defendant  wrote  to  the  plaintiff,  as 
follows : 

"Sir:  I  have  returned  your  bill  unsigned;  but,  as  I  have  never  re- 
ceived the  two  pockets  of  hops  or  heard  anything  about  them,  I  con- 
cluded you  had  not  thought  of  sending  them,  and  have  made  an  ex- 
change for  some  malt,  and  shall  not  require  them.  As  I  will  never 
sign  a  bill,  I  will  pay,  as  was  agreed,  in  February,  the  weight  of  the 
two  Carpenter's." 

The  defendant  subsequently  paid  the  price  of  the  two  pockets  which 
he  had  received,  all  but  a  small  balance  which  was  covered  by  the 
payment  into  Court. 

It  was  objected  on  the  part  of  the  defendant  that,  as  to  the  two 
pockets  of  Thorpe's  hops,  there  was  no  contract  binding  within  the 
Statute  of  Frauds,  no  delivery  or  acceptance,  or  part  payment,  and 
no  evidence  of  goods  bargained  and  sold. 

For  the  plaintiff  it  was  insisted  that  the  whole  was  one  bargain, 
and  consequently  that  there  had  been  a  parti  delivery  and  part  pay- 
ment, and  that  the  property  in  the  whole  four  pockets  passed  by  the 
contract. 

The  learned  judge  ruled  that  it  was  one  entire  contract,  and  that, 
therefore,  there  had  been  a  part  delivery  so  as  to  make  a  contract 
binding  within  the  Statute  of  Frauds ;  that  the  plaintiff  could  not  rely 
upon  the  part  payment,  because  the  defendant,  at  the  time  of  making 
the  payment,  repudiated  the  bargain  as  to  the  two  pockets  in  ques- 
tion; that,  though  there  was  a  binding  contract,  the  property  did  not 
pass  thereby,  inasmuch  as  the  contract  was  to  deliver  two  out  of  a 
larger  number  of  pockets  of  Thorpe's  hops  equal  to  sample,  the  price 
to  be  determined  according  to  the  weight;  and  that  there  had  been 
no  sufficient  appropriation  afterwards  to  pass  the  property,  because 


94  UNASCERTAINED  GOODS — APPROPRIATION         (Ch.  2 

Prid  &  Son  never  bound  themselves  to  hold  for  the  defendant  instead 
of  for  the  plaintiff.  He  thereupon  nonsuited  the  plaintiff,  reserving 
him  leave  to  move  to  enter  a  verdict  for  f22.  13s.  lOd.,  the  Court  to 
draw  inferences  of  fact. 

Brett,  J.  At  the  trial  I  proposed  to  nonsuit  the  plaintiff,  on  the 
ground  that  there  was  no  evidence  to  go  to  the  jury  in  support  of  the 
count  for  goods  bargained  and  sold.  It  was  not  then  suggested  that 
there  was  any  authority  from  the  defendant  to  the  plaintiff  to  select 
the  two  pockets  for  him.  If  it  had  been,  I  should  not  have  nonsuited 
the  plaintiff,  but  would  have  left  that  question  to  the  jury.  The  ques- 
tion now  is,  not  whether  there  was  any  evidence  for  the  jury,  but 
whether  the  Court  can  infer  from  the  facts  proved,  that  the  property 
in  the  two  pockets  of  Thorpe's  passed.  It  is  clear  that  no  property 
passed  by  the  contract  itself.  The  contract  was  for  a  sale  by  sample 
of  unascertained  hops,  the  price  depending  on  the  weight.  Then 
comes  the  case  put  by  my  Brother  Blackburn  in  the  passage  at  page 
127,  to  which  I  referred  in  the  course  of  the  argument.  Here,  there 
was  no  previous  authority  given  to  the  plaintiff  to  appropriate;  and, 
if  not,  what  evidence  was  there  to  show  that  the  appropriation  of  the 
two  pockets  in  Prid  &  Son's  warehouse  was  ever  assented  to  by  the 
defendant?  The  defendant's  assent  might  have  been  given  in  either 
of  two  ways, — by  himself,  or  by  an  authorized  agent.  By  himself, 
after  the  receipt  of  the  letter  containing  the  invoice ;  or  by  the  ware- 
house-keepers, if  there  had  been  any  evidence  of  agency  or  authority 
in  them  to  accept,  and  assent  by  them  to  hold  the  hops  for  him.  I 
think  the  defendant's  letter,  refusing  to  accept  the  draft  was  strong,  if 
not  conclusive,  to  shew  that  there  had  been  no  such  assent  by  the  de- 
jfendant.  And,  as  to  Prid  &  Sons,  the  evidence  fails  on  both  points. 
They  never  agreed  to  hold  the  two  pockets  on  behalf  of  the  purchas- 
er; and,  if  they  did,  there  is  no  evidence  of  any  authority  from  him 
that  they  might  do  so.  Mr.  Lloyd  has  strongly  put  forward  a  point 
which  was  not  made  at  the  trial,  viz.  that  there  was  evidence  that,  by 
agreement  between  the  parties,  the  purchaser  gave  authority  to  the 
seller  to  select  the  two  pockets  for  him.  If  he  did  so,  he  gave  up  his 
power  to  object  to  the  weighing  and  to  the  goods  not  corresponding 
with  the  sample ;  for,  he  could  not  give  such  authority  and  reserve  his 
right  so  to  object ;  and  indeed  it  has  not  been  contended  that  he  gave 
up  those  rights.  That  seems  to  me  to  be  conclusive  to  shew  that  the 
defendant  never  gave  the  plaintiff  authority  to  make  the  selection  so 
as  to  bind  him.  Under  the  circumstances,  therefore,  it  is  impossible 
to  say  that  the  property  passed ;  consequently,  the  plaintiff  cannot  re- 
cover as  for  goods  bargained  and  sold. 

Rule  discharged.^  ^ 

■   2  5A  concurring  opinion  was  delivered  by  Keating,  J. 


I 


Sec.  6)         UNASCERTAINED  GOODS APPROPRIATION  95 

ANDREWS  V.  CHENEY. 

(Supreme  Court   of  New  Hampshire,    1882.     62  N.   H.   404.) 

Assumpsit,  to  recover  money  paid  for  goods.  Facts  found  by  a 
referee.  October  28,  1879,  the  plaintiff  bought  goods  of  the  defend- 
ant and  paid  for  them.  The  defendant  did  not  have  in  stock  the 
goods  wanted,  and  the  plaintiff  selected  the  kind  and  quality  de- 
sired from  samples.  The  defendant  agreed  to  have  the  goods  at  his 
store  within  two  weeks,  at  which  time  the  plaintiff  was  to  call  for 
them ;  if  they  were  ready  before  that  time  the  defendant  agreed  to 
notify  him.  Within  the  stipulated  time  the  defendant  got  the  goods 
into  his  store,  set  them  apart  by  themselves,  and  marked  them  with 
the  plaintiff's  name.  The  goods,  together  with  the  store,  were  de- 
stroyed by  fire  November  21,  1879,  the  plaintiff  not  having  called  for 
them.  The  court  ordered  judgment  for  the  defendant,  and  the  plain- 
tiff excepted. 

Carpenter,  J.  The  property  in  the  goods  did  not  pass  to  the  plain- 
tiff" by  virtue  of  the  contract,  for  they  were  not  then  ascertained,  and 
may  not  have  been  in  existence.  The  agreement  on  the  part  of  the 
defendant  was  executory.  He  agreed  to  furnish  goods  corresponding 
to  the  samples  selected  by  the  plaintiff.  If  the  goods,  subsequently 
procured  and  set  apart  by  the  defendant,  did  not  conform  to  the 
samples,  the  plaintiff  had  a  right  to  reject  them.  It  does  not  appear 
that  he  waived  that  right.  The  defendant  was  not  concluded  by  his 
selection ;  he  might  have  sold  or  otherwise  disposed  of  the  particular 
articles  set  apart  by  him,  and  substituted  others  in  their  place.  A  con- 
tract of  sale  is  not  complete  until  the  specific  goods  upon  which  it 
is  to  operate  are  agreed  upon.  Until  that  is  done  the  contract  is  not 
a  sale,  but  an  agreement  to  sell  goods  of  a  particular  description.  It 
is  performed  on  the  part  of  the  vendor  by  furnishing  goods  which  an- 
swer the  description.  If,  as  in  the  case  of  a  sale  by  sample,  the  spe- 
cific goods  are  not  ascertained  by  the  agreement,  the  property  does  not 
pass  until  an  appropriation  of  specific  goods  to  the  contract  is  made 
with  the  assent  of  both  parties.  Bog  Lead  Mining  Co.  v.  Montague, 
10  C.  B.  N.  S.  489;  Jenner  v.  Smith,  L.  R.  4  C.  P.  270;  Heilbutt  v. 
Hickson,  L.  R.  7  C.  P.  438 ;  Merchants'  N.  Bank  v.  Bangs,  102  Mass. 
291;  Black.  Sales,  122,  127;  Benj.  Sales,  §  358.  If  the  plaintiff  au- 
thorized the  defendant  to  make  the  selection,  the  property  immediately 
on  the  selection  vested  in  the)  plaintiff'.  Aldridge  v.  Johnson,  7  E.  &  B. 
885.  It  not  appearing  that  the  plaintiff  gave  such  authority,  the  goods 
at  the  time  of  the  fire  were  the  property  of  the  defendant,  and  their 
destruction  was  his  loss. 

By  the  terms  of  the  contract  the  defendant  was  to  have  the  goods 
at  his  store  within  two  weeks,  at  the  end  of  which  time,  or  sooner  if 
notified  that  they  were  ready,  the  plaintiff  was  to  call  for  them,  and 
the  defendant  was  to  deliver  them.     Within  the  stipulated  time  the 


96  UNASCERTAINED    GOODS APPROPRIATION  (Ch.  2 

defendant  procured  the  goods  and  had  them  ready  for  dehvery.  This 
was  all  the  agreement  required  him  to  do,  and  all  that  he  could  do  until 
the  plaintiff  came  for  them.  The  plaintift"'s  call  being  a  condition 
precedent  to  the  defendant's  obligation  to  deliver,  must  be  shown  in 
order  to  entitle  the  plaintiff  to  treat  the  contract  as  rescinded  and 
recover  back  the  purchase-money. 

It  may  be  that  the  trial  before  the  referee  proceeded  upon  the  mis- 
taken theor}'  that  the  rights  of  the  parties  were  concluded  by  the  de- 
struction by  fire  of  the  particular  goods  selected  by  the  defendant,  and 
that  the  only  question  was  upon  whom  the  loss  of  those  goods  should 
fall.  The  plaintiff'  did  not  call  for  the  goods  before  the  fire;  but 
whether  he  did  after  the  fire  does  not  appear,  and  may  have  been  con- 
sidered immaterial.  The  rights  of  the  parties  under  the  agreement 
were  not  aff'ected  by  the  destruction  of  the  goods.  If  they  were  set 
apart  without  authority  from  the  plaintiff,  he  still  had  the  right  to 
call  for  the  goods  he  bargained  for,  and  the  defendant  was  bound 
to  deliver  them.  Upon  the  defendant's  neglect  or  refusal  to  deliver 
them  upon  request  as  well  after  as  before  the  fire,  the  plaintiff  might 
at  his  election  rescind  the  contract  and  recover  the  purchase-money, 
or  affirm  it  and  recover  for  the  breach.  Drew  v.  Claggett,  39  N.  H. 
431;  Weeks  v.  Robie,  42  N.  H.  316;  Swazey  v.  Company,  48  N.  H. 
200. 

The  case  may  be  recommitted  to  the  referee,  if  the  plaintiff'  desires 
it,  for  the  purpose  of  showing  a  call  for  the  goods  after  the  fire.  If 
recommitted,  it  will  be  open  to  the  defendant  to  show  that  he  was  au- 
thorized by  the  plaintiff'  to-  select  the  goods.  As  the  case  stands  the 
exceptions  are  overruled. 

Exceptions  overruled. 

Ali^EN,  J.,  did  not  sit :  the  others  concurred. 


MITCHELL  et  al.  v.  LE  CLAIR. 
(Supreme  Judicial  Court  of  Massachusetts,  1896.     165  Mass.  30S,  43  N.  E.  117.) 

Contract,  upon  an  account  annexed,  to  recover  the  price  of  sixty 
tubs  of  butter  sold  by  the  plaintiff's  to  the  defendant.  Trial  in  the 
Superior  Court,  without  a  jury,  before  Richardson,  J.,  who  allowed 
a  bill  of  exceptions,  in  substance  as  follows : 

The  plaintiff's  are  wholesale  butter  dealers  in  Boston  and  the  de- 
fendant is  a  grocer  in  Southbridge. 

On  September  26,  1893,  the  defendant  visited  the  store  of  the 
plaintiff's,  inquiring  the  price  of  butter.  The  plaintiff's  oft'ered  to  sell 
to  the  defendant  sixty  tubs  of  butter,  of  the  same  kind  and  quality 
as  that  previously  bought  by  the  defendant  from  the  plaintiff's,  for 
twenty-seven  cents  per  pound,  cash,  provided  he  accepted  before  twelve 
o'clock  on  the  following:  dav.    The  defendant  before  twelve  o'clock  on 


Sec.  6)  UNASCERTAINED    GOODS APPROPRIATION  97 

the  following  day,  by  telegram,  accepted  the  offer.  The  plaintiffs  tes- 
tified that,  immediately  upon  the  acceptance  of  the  offer,  they  went 
to  the  public  storage  warehouse,  where  they  had  large  quantities  of 
butter  stored,  and  picked  out  sixty  tubs  of  butter,  weighed  it,  set  it 
one  side,  and  marked  each  tub  for  the  purpose  of  designating  it  as 
the  butter  of  the  defendant,  and  at  once  sent  a  bill  of  all  of  it  to  the 
defendant,  marked  "Cash  on  demand."  The  defendant  had  no  notice 
whatever  of  this  selection,  setting  aside,  and  marking  of  sixty  tubs 
of  butter,  except  the  receipt  of  the  bill.  There  was  no  evidence  in- 
troduced to  show  that  the  kind  or  quality  of  the  butter  thus  set  aside 
was  or  was  not  of  a  similar  grade  or  quality  as  that  sold  the  defendant 
before.  No  objection  was  ever  made  by  the  defendant  to  paying  for 
any  of  it  on  the  ground  that  it  was  not  of  the  quality  or  kind  of  butter 
purchased.  Afterwards,  the  defendant  at  different  times  directed  ship- 
ments to  be  made  by  the  plaintiff's  of  the  butter  so  bought  by  him,  and 
the  same  was  shipped,  to  the  amount  of  forty  tubs,  and  accepted  with- 
out any  objection,  and  paid  for.  The  plaintiffs  testified  that  these 
forty  tubs  were  taken  from  the  lot  set  aside  as  above  stated;  but  of 
this  fact  the  defendant  had  no  knowledge,  except  from  the  bill  sent 
at  the  time  of  purchase,  which  enumerated  the  separate  weight  and 
tare  of  each  tub  of  butter. 

In  March,  1894,  the  defendant  directed  the  plaintiff's  to  ship  to  him 
the  remaining  twenty  tubs  of  butter.  This  the  plaintiffs  refused  to  do 
until  they  had  first  received  the  pay  for  them,  claiming  that  the  sale 
was  for  cash  on  demand,  and  demands  for  payment  having  been  pre-  / 
viously  made.  The  defendant  did  not  understand  these  to  be  the 
terms ;  but  did  understand  that  he  was  to  receive  delivery  of  the  but- 
ter and  pay  for  it  during  the  three  months  succeeding  September  26, 
1893.  The  price  of  butter  declined  in  the  market  soon  after  the  agree- 
ment was  made.  The  plaintiffs  still  have  the  butter  on  storage,  sub- 
ject to  the  order  of  the  defendant  when  he  pays  for  it.  The  defend- 
ant asked  the  judge  to  rule  "that  the  selection,  setting  aside,  and  mark- 
ing of  the  sixty  tubs,  as  testified  to  by  the  plaintiff's,  could  not  be  con- 
sidered a  delivery,  the  defendant  neither  having  knowledge  of  such 
action  nor  assenting  thereto,  expressly  or  by  implication,"  and  "that 
the  plaintiffs  had  failed  to  make  out  their  case,  in  that  there  was  no 
evidence  that  the  butter  selected,  set  aside,  and  marked,  as  aforesaid, 
was  of  the  kind  and  quality  ordered." 

The  judge  refused  to  rule  as  requested;  found,  that,  by  the  agree- 
ment, the  defendant  was  to  take  all  the  sixty  tubs,  and  pay  for  it  within 
three  months  from. September  26,  1893;  and  that  the  plaintiff's  made 
several  demands  upon  the  defendant,  before  and  after  the  expiration 
of  the  three  months,  to  take  the  rest  of  the  butter  and  pay  for  it ;  and 
found  for  the  plaintiffs.     The  defendant  alleged  exceptions. 

KnowIvTon,  J.  The  principal  question  in  this  case  is  whether  there 
was  a  sufficient  delivery  of  the  butter  to  pass  the  title  as  between  the 

WOODW.  yALES — 7 


98  UNASCERTAINED  GOODS — APPROPRIATION         (Ch.  2 

parties.  There  is  no  dispute  that  there  was  a  good  contract  of  sale, 
and  no  question  arises  under  the  statute  of  frauds. 

The  defendant  accepted  by  telegram  the  plaintiffs'  offer  to  sell  him 
60  tubs  of  butter  of  a  specified  quality  at  27  cents  per  pound.  The 
plaintiffs  had  in  their  storehouse  a  large  quantity  of  butter.  Upon 
the  receipt  of  the  defendant's  telegram  accepting  their  offer,  they  were 
impliedly  authorized,  as  the  defendant's  agents,  to  set  apart  and  ap- 
propriate to  him  the  goods  called  for  by  the  contract.  This  they  im- 
mediately did,  weighing  the  butter,  setting  it  apart,  and  marking  each 
tub  for  the  purpose  of  designating  it  as  the  defendant's  property.  They 
then  at  once  sent  him  a  bill  of  all  of  it,  marked,  "Cash  on  demand." 
This  completed  the  sale,  and  passed  the  title.  Morse  v.  Sherman,  106 
Mass.  430;  Marble  v.  Moore,  102  Mass.  443;  Arnold  v.  Delano,  4 
Cush.  33-38,  50  Am.  Dec.  754 ;  Ropes  v.  Lane,  9  Allen,  502-510 ;  Bank 
V.  Bangs,  102  Mass.  291-295;  Safford  v.  McDonough,  120  Mass.  290; 
Gilmour  v.  Supple,  11  Moore,  P.  C.  551-556;  Tarling  v.  Baxter,  6 
Barn.  &  C.  360;  Benj.  Sales  (6th  Am.  Ed.)  294-298,  and  cases  cited 
in  the  note. 

If  the  contract  is  not  in  such  form  as  to  be  binding  under  the  statute 
of  frauds,  such  an  appropriation  does  not  constitute  an  acceptance  un- 
der that  statute,  nor  does  it  change  the  possession,  and  thereby  de- 
prive the  vendor  of  his  lien  for  the  price.  Safford  v.  McDonough, 
120  Mass.  290.  But  if  the  vendee  in  such  a  case  afterwards  refuses 
to  take  the  goods,  and  pay  for  them,  the  vendor  may  recover  the 
price,  if  he  keeps  them  in  readiness  for  delivery  to  the  purchaser.  Un- 
der a  contract  of  sale,  when  the  goods  had  been  so  appropriated  and 
set  apart,  the  vendor  has  done  that  which  by  the  tenns  of  the  agree- 
ment makes  the  whole  consideration  payable ;  and  so  long  as  he  re- 
mains ready  to  do  whatever  else  is  to  be  done  to  give  the  vendee  the 
benefit  of  his  purchase,  he  is  entitled  to  receive  the  agreed  price  with- 
out deduction  on  account  of  his  retention  of  his  lien  upon  the  prop- 
erty. White  V.  Solomon,  164  Mass.  516,  42  N.  E.  104,  30  L.  R.  A.  537; 
Morse  v.  Sherman,  106  Mass.  430;  Putnam  v.  Glidden,  159  Mass.  47, 
34  N.  E.  81,  38  Am.  St.  Rep.  394. 

There  was  sufficient  evidence  to  warrant  the  judge  in  finding  that 
the  butter  answered  the  requirements  of  the  contract.  The  plaintiffs 
appropriated  it  to  the  defendant  as  butter  of  the  quality  called  for. 
Their  conduct  then  and  afterwards  was  equivalent  to  a  declaration  that 
it  conformed  to  the  agreement  of  the  parties.  Afterwards  shipments 
were  made  from  time  to  time  of  a  part  of  it,  amounting  to  40  tubs  in 
all,  which  were  accepted  and  paid  for  by  the  defendant  without  ob- 
jection. This  was  an  admission  by  the  defendant  that  the  quality  of 
the  40  tubs  was  such  as  he  expected.  The  bill  sent  to  the  defendant 
in  the  first  place  gave  the  separate  weight  and  tare  of  each  tub  of 
butter.  The  defendant  directed  the  shipping  to  him  of  the  remaining 
20  tubs,  and  the  only  dispute  between  the  parties  at  that  time  was  in 


Sec.  6)  UNASCERTAINED   GOODS APPROPRIATION  99 

regard  to  the  terms  of  payment ;  the  plaintiffs  asserting  that  the  prop- 
erty was  to  be  paid  for  on  demand,  before  parting  with  the  possession, 
and  the  defendant  contending  that  he  was  entitled  to  receive  it,  and 
to  have  three  months  from  the  time  of  sale  in  which  to  make  payment. 
While  these  facts  do  not  make  it  certain  that  the  20  tubs  remaining  in 
the  possession  of  the  plaintiffs  were  of  good  quality,  they  warrant  an 
inference  in  favor  of  the  plaintiffs'  contention,  in  the  absence  of  any- 
thing to  show  the  contrary.  The  last  instruction  requested  was  there- 
fore rightly  refused. 
Exceptions  overruled. 


BRYANS  V.  NIX. 

(Court  of  Exchequer,  1839.     4  Mees.  »&  W.  775.) 

Parke,  B.^**  The  question  in  this  case  is,  whether  the  property  in 
the  oats  on  board  two  boats,  No.  604,  and  No.  54,  or  either  of  them, 
was  vested  in  the  plaintiffs  at  the  time  the  defendants  took  possession 
of  those  oats.  We  think  that  the  property  in  the  former  was  in  the 
plaintiffs,  in  the  latter  not. 

The  facts  of  the  case,  necessary  to  its  determination,  may  be  very 
shortly  stated.  Miles  Tempany,  a  corn-merchant  at  Longford,  who  em- 
ployed the  plaintiffs  as  his  factors  at  Liverpool,  shipped  on  board  the 
boat.  No.  604,  a  full  cargo  of  oats,  and  took  a  bill  of  lading  or  boat- 
receipt  for  them,  signed  by  the  master,  bearing  date  the  31st  of  Janu- 
ary, 1837,  whereby  he  acknowledged  the  receipt  of  the  oats  on  board, 
deliverable  in  Dublin  to  John  and  T.  Delany,  in  care  for  and  to  be  ship- 
ped to  the  plaintiffs  in  Liverpool.  On  the  same  day,  he  procured  from 
the  master  of  another  boat.  No.  54,  a  like  bill  of  lading  or  receipt,  for 
530  barrels,  but  no  oats  were  then  on  board  that  boat,  although  a 
cargo  was  prepared  for  that  purpose.  On  the  2d  of  February,  Tem- 
pany wrote  to  the  plaintiffs  a  letter  enclosing  both  those  instruments, 
and  stating  that  he  had  valued  on  the  plaintiffs  for  £730  against  those 
oats.  On  the  7th,  the  plaintiffs  received  this  letter,  and  accepted  the 
bill  of  exchange,  and  returned  it  to  Tempany,  who  received  it  on  the 
9th. 

In  the  meantime,  the  defendant,  who  was  a  creditor  of  Tempany  to 
a  considerable  amount,  sent  over  Mr.  W^alker,  an  agent,  to  Longford. 
Walker  arrived  on  the  6th,  and  pressed  him  for  security.  Tempany 
consented  on  that  day  to  give  him  an  order,  addressed  to  Tempany's 
brother,  his  agent  in  Dublin,  desiring  him  to  deliver  to  Walker,  for  the 
defendant,  the  cargo  of  boat  604,  which  had  then  sailed  for  Dublin, 
and  four  other  cargoes,  including  that  of  boat  54,  (which  was  stated  to 
be  560  barrels,)  and  also  all  that  was  in  Tempany's  store  in  Dublin. 

2  8  The  statement  of  facts  is  omitted. 


100  UNASCERTAINED    GOODS APPROPRIATION  (Ch.  2 

The  boat  54  was  then  partially  loaded,  and  Tempany  promised  to  send 
the  boat-receipt  for  it  to  Walker.  The  loading  was  completed  on  the 
9th,  the  boat-receipt  or  bill  of  lading,  for  550  barrels,  which  were  on 
board,  signed  by  the  master  and  transmitted  to  Walker,  to  whom  the 
cargo  was  made  deliverable,  and  he  received  it  the  next  day.  The  boats 
were  both  hired  by  Tempany,  and  the  men  paid  by  him.  Walker,  on 
the  8th,  procured  an  agreement  from  J.  Tempany,  in  Dublin,  to  hold 
the  oats  for  him,  when  they  arrived :  and  he  afterwards  got  possession 
of  the  whole  by  legal  process. 

It  was  contended,  that,  under  these  circumstances,  the  property  in 
neither  cargo  vested  in  the  plaintiffs ;  first,  because  the  instruments 
were  not  regular  bills  of  lading,  and  could  give  no  title ;  and  secondly, 
if  they  were,  they  could  not  operate  to  give  the  plaintiffs  a  title,  because 
they,  being  factors,  could  acquire  no  lien  without  actual  possession. 

We  think  it  unnecessary  to  decide  whether  the  instruments  were 
regular  bills  of  lading,  so  as  to  have  all  the  properties  which  the  custom 
of  merchants  has  attached  to  those  documents.  We  need  not  say, 
whether,  like  bills  of  lading,  they  are  the  symbols,  of  property,  so  that 
their  transfer  by  endorsement  is  equivalent  to  an  actual  delivery  of  the 
goods,  which  they  represent,  in  specie;  nor  whether  they  have  the 
privileges  which  by  the  factor's  act  are  given  to  such  instruments. 
These  are  matters  wholly  collateral  to  the  present  inquiry.  The  true 
question  here  is,  what  is  the  meaning  and  eft'ect  of  the  two  documents, 
by  whatever  name  they  are  called,  coupled  with  the  letter  from  Tem- 
pany, of  the  2d  of  February,  followed  by  the  acceptance  by  the  plain- 
tiffs of  Tempany's  draft?  It  seems  to  us  to  be  clearly  this, — that  Tem- 
pany agrees  that  the  oats  therein  specified,  shall  be  held  from  that 
time  by  the  boat-masters,  for  the  plaintiff's,  in  their  own  right,  provided 
they  accept  the  bill,  as  a  security  for  its  payment — that  the  masters 
agree  so  to  hold  them,  and  that,  by  the  plaintiff's  assent  and  accept- 
ance of  the  bill,  the  conditional  agreement  becomes  absolute.  The 
transaction  is  in  eff"ect  the  same,  as  if  Tempany  had  deposited  the 
goods  with  a  stakeholder,  who  had  assented  to  hold  them,  for  the  plain- 
tiffs, in  order  to  indemnify  them.  As  evidence  of  such  a  transaction, 
it  is  wholly  immaterial  whether  the  instruments  are  bills  of  lading  or 
not :  and  it  might  equally  be  proved  through  the  medium  of  carriers' 
or  wharfingers'  receipts,  or  any  other  description  of  document,  or  by 
correspondence  alone.  If  the  intention  of  the  parties  to  pass  the  prop- 
erty, whether  absolute  or  special,  in  certain  ascertained  chattels,  is  es- 
tablished, and  they  are  placed  in  the  hands  of  a  depositary,  no  matter 
whether  such  depositary  be  a  common  carrier,  or  ship-master,  em])loyed 
by  the  consignor,  or  a  third  person,  and  the  chattels  are  so  placed  oi? 
account  of  the  person  who  is  to  have  that  property ;  and  the  depositar^^ 
assents ;  it  is  enough :  and  it  matters  not  by  what  documents  this  is 
effected ;  nor  is  it  material  whether  the  person  who  is  to  have  the  prop- 
erty be  a  factor  or  not ;  for  such  an  agreement  may  be  made  with  a 
factor,  as  well  as  any  other  individual. 


Sec.  6)         UNASCERTAINKD  GOODS APPROPRIATION  101 

In  the  present  case  we  are  of  opinion  that  this  is  satisfactorily  made 
out,  with  respect  to  the  first  boat-load  :  and  the  fact  that  the  instrument 
signed  by  the  master,  specifies  that  the  goods  are  to  be  carried  to  and 
delivered  at  Dublin,  to  an  agent  of  the  plaintiffs,  is  decisive  to  show 
that  the  plaintiffs  are  to  take  immediately  in  their  own  right,  and  are 
not  mere  consignees  of  Tempany,  who  are  to  have  their  lien  when  the 
goods  arrive,  as  factors.  And  this  case  is  distinguishable,  on  this 
ground,  from  Kinloch  v.  Craig,  Bruce  v.  Wait,  and  Nichols  v.  Clent, 
in  none  of  which  was  there  any  documentary  or  other  evidence  to 
prove  that  the  intention  of  the  consignors  was  to  vest  the  property  in 
the  consignee  from  the  moment  of  delivery  to  the  carrier  :  and  the  case 
resembles  that  of  Haille  v.  Smith,  where  the  bill  of  lading  being  trans- 
mitted for  a  valuable  consideration,  operated  as  a  change  of  property 
instanter,  when  the  goods  were  shipped ;  and  it  is  also  governed  by  the 
same  principle  upon  which  I  know  that  of  Anderson  v.  Clark  was  de- 
cided, where  a  bill  of  lading,  making  the  goods  deliverable  to  a  factor, 
was,  upon  proof  from  correspondence  of  the  intention  of  the  principal 
to  vest  the  property  in  the  factor,  as  security  for  antecedent  advances, 
held  to  give  him  a  special  property  the  instant  the  goods  were  delivered 
on  board,  so  as  to  enable  him  to  sue  the  master  of  the  ship  for  their 
non-delivery. 

In  our  opinion,  therefore,  the  plaintiffs  had  a  complete  title  to  the 
cargo  of  the  boat  604,  at  least  on  the  7th  of  February,  when  they  com- 
plied with  the  condition  by  accepting  the  bill :  and  before  the  7th,  no 
other  title  to  the  oats  intervened ;  for  the  order  to  deliver  them  to 
Walker,  given  on  the  6th,  was  clearly  executory  only.  But  the  claim 
of  the  plaintiffs  to  the  cargo  of  boat  54,  stands  on  a  very  diff'erent  foot- 
ing. 

At  the  time  of  the  agreement,  proved  by  the  bill  of  lading  or  boat- 
receipt  of  the  31st  January,  to  hold  the  530  barrels  therein  mentioned 
for  the  plaintiff's,  there  were  no  such  oats  on  board ;  and  consequently 
no  specific  chattels  which  were  held  for  them.  The  undertaking  of  the 
boat-master  had  nothing  to  operate  upon,  and  though  Miles  Tempany 
had  prepared  a  quantity  of  oats  to  put  on  board,  those  oats  still  re- 
mained his  property ;  he  might  have  altered  their  destination,  and  sold 
them  to  any  one  else ;  the  master's  receipt  no  more  attached  to  them, 
than  to  any  other  quantity  of  oats  belonging  to  Tempany.  If  indeed, 
after  the  31st  of  January,  these  oats  so  prepared,  or  any  other  like 
quantity,  had  been  put  on  board  to  the  amount  of  530  barrels,  or  less, 
for  the  purpose  of  fulfilling  the  contract,  and  received  by  the  master 
as  such,  before  any  new  title  to  these  oats  had  been  acquired  by  a  third 
person,  we  should  have  probably  held,  that  the  property  in  these  oats 
passed  to  the  plaintiff's,  and  that  the  letter  and  receipt,  though  it  did  not 
operate,  as  it  purported  to  do,  as  an  appropriation  of  any  existing  spe- 
cific chattels,  at  least  operated  as  an  executory  agreement  by  Tempany 
and  the  master  and  the  plaintiffs,  that  Tempany  should  put  such  a 
quantity  of  oats  on  board  for  the  plaintiff's,  and  that  when  so  put,  the 


102  UNASCERTAINED   GOODS — APPROPRIATION  (Ch.  2 

master  should  hold  them  on  their  account :  and  when  that  agreement 
was  fulfilled,  then,  but  not  otherwise,  they  would  become  their  prop- 
erty. But  before  the  complete  quantity  of  530  barrels  was  shipped, 
and  when  a  small  quantity  of  oats  only  were  loaded,  and  before  any 
appropriation  of  oats  to  the  plaintiffs  had  taken  place,  Tempany  was 
induced  to  enter  into  a  fresh  engagement  with  the  defendant,  to  put  on 
board  for  him  a  full  cargo  for  No.  54,  by  way  of  satisfaction  for  the 
debt  due  to  him;  for  such  is  the  effect  of  the  delivery  order  of  the 
6th,  and  the  agreement  with  Walker,  of  the  same  date,  to  send  the  boat- 
receipt  for  the  cargo  of  that  vessel.  Until  the  oats  were  appropriated 
by  some  new  act,  both  contracts  were  executory :  on  the  9th  this  ap- 
propriation took  place,  by  the  boat-receipt  for  the  550  barrels  then 
on  board,  which  was  signed  by  the  master,  at  the  request  of  Tempany ; 
whereby  the  master  was>  constituted  the  agent  of  the  defendant  to  hold 
those  goods ;  and  this  was  the  first  act  by  which  these  oats  were  spe- 
cifically appropriated  to  any  one.  The  master  might  have  insisted  on 
Tempany's  putting  on  board  oats  to  the  amount  of  the  first  bill  of  lad- 
ing, on  account  of  the  plaintiffs,  but  he  did  not  do  so. 

It  is  proper,  however,  to  notice  the  very  ingenious  argument  used 
on  the  part  of  the  plaintiffs,  founded  on  the  doctrine  of  estoppel,  as 
applied  to  real  estate.  If  a  man,  by  indenture,  demises  a  certain  manor, 
which  he  has  not,  and  then  purchases  the  manor,  and  afterwards  sells 
or  demises  to  B.,  the  first  lease  operates  against  the  purchaser  or  sec- 
ond lessee ;  and  by  analogy  to  this  case,  it  is  contended  that  the  first  bill 
of  lading  was  good  for  the  plaintiffs  by  estoppel,  against  the  master, 
and  consignor ;  and  against  the  defendant,  who  claims  that  cargo  which 
was  put  on  board  under  the  consignor.  But  this  analogy  does  not  hold ; 
in  the  case  of  real  property,  the  lease  is  a  conclusive  admission  by  the 
lessor,  that  he  has  a  title  to  the  specific  estate  demised,  which  binds  a 
subsequent  purchaser  of  that  estate:  here  the  bill  of  lading  is  a  con- 
clusive admission  only  that  some  oats,  amounting  to  the  specified 
quantity,  were  on  board.  In  the  former  case,  the  estate  is  identified 
and  ascertained  at  the  time  of  the  admission :  in  the  latter,  no  prop- 
erty existed  to  which  the  admission  applied,  for  no  oats  were  on  board ; 
and  they  are  not  otherwise  ascertained,  than  by  that  statement  that  they 
were  on  board;  and  the  person  who  afterwards  purchases  any  oats 
from  the  consignor,  might  as  well  be  said  to  purchase  those  to  which 
the  estoppel  relates,  as  he  who  purchases  those  which  were  afterwards 
put  on  board.  And  besides,  it  may  well  be  doubted  whether  the  doc- 
trine of  estoppel  applies  to  personal  chattels  at  all,  so  as  to  bind  a  sub- 
sequent purchaser  of  them. 

For  these  reasons,  we  think  that  the  plaintiffs  are  entitled  to  the  first 
cargo  of  oats,  but  not  to  the  other ;  and  the  rule  must  be  discharged  as 
to  boat  604,  and  the  verdict  reduced  by  the  value  of  boat  54. 

Rule  accordingly. 


! 


Sec.  6)  UNASCERTAINED   GOODS APPROPRIATION  103 

ALDRIDGE  v.  JOHNSON. 
(Court  of  Queen's  Bench,  1857.     7  El.  &  Bl.  SS5.) 

This  was  an  action  brought  by  the  plaintiff  to  recover  certain  goods 
alleged  to  be  his  property,  and  to  have  been  detained  by  the  defendant ; 
or  the  value  of  such  goods,  and  damages  for  their  detention ;  and  also 
to  recover  damages  for  the  wrongful  conversion  of  the  same  goods  by 
the  defendant. 

The  defendant  pleaded  to  the  whole  declaration:  1st.  Not  guilty; 
and,  2dly,  that  the  goods  were  not  the  plaintiff's  property. 

On  the  trial,  before  Erie,  J.,  at  the  Sittings  in  London  in  last  Hilary 
Term,  a  ve/dict  was  found  for  the  plaintiff,  by  consent,  for  the  whole 
amount  of  his  claim,  and  costs  40s.,  subject  to  the  opinion  of  the  Court 
upon  the  following  case  : 

The  plaintiff'  agreed  to  take  from  one  Knight  one  hundred  quarters 
of  barley  out  of  the  bulk,  which  he  had  inspected  and  approved,  in 
Knight's  granary  at  £2.  3s.  a  quarter,  in  exchange  for  thirty-two  bul- 
locks, at  £6.  apiece.  The  difference  to  be  paid  to  Knight  in  cash. 
The  bullocks  were  delivered.  The  plaintiff  was  to  send  his  own  sacks, 
which  Knight  was  to  fill,  to  take  to  the  railway,  and  to  place  upon 
trucks  free  of  charge.  Each  quarter  of  barley  would  fill  two  sacks, 
and  the  plaintiff  sent  two  hundred  sacks,  some  of  them  with  his  name 
marked  on  them,  and  Knight  filled  one  hundred  and  fifty-five  sacks, 
leaving  in  the  bulk  more  than  enough  to  fill  the  other  forty-five,  but 
Knight  could  not  succeed  in  obtaining  trucks.  The  plaintiff  requested 
that  the  one  hundred  and  fifty-five  sacks  should  be  sent  to  him.  He 
afterwards  complained  to  Knight  of  the  delay,  and  was  assured  that 
the  barley  would  be  put  on  the  rail  that  day,  but  this  was  not  done; 
and  Knight  finding  himself  on  the  eve  of  bankruptcy,  emptied  the  bar- 
ley out  of  the  sacks  into  the  bulk  again. ^^ 

Lord  Campbi:li„  C.  J.  In  cases  of  this  sort  there  often  is  great 
doubt  and  great  difficulty ;  but  the  present  case  seems  to  me,  on  both 
points,  free  from  all  doubt  and  difficulty.  I  think  that  no  portion  of 
what  remained  in  bulk  ever  vested  in  the  plaintiff.  We  cannot  tell 
what  part  of  that  is  to  vest.  No  rule  of  the  law  of  vendor  and  pur- 
chaser is  more  clear  than  this  :  that,  until  the  appropriation  and  separa-i 
tion  of  a  particular  quantity,  or  signification  of  assent  to  the  particular 
quantity,  the  property  is  not  transferred.  Therefore,  except  as  to  what 
was  put  into  the  155  sacks,  there  must  be  judgment  for  the  defendant. 

It  is  equally  clear  that,  as  to  what  was  put  into  those  sacks,  there 
must  be  judgment  for  the  plaintiff.  Looking  to  all  that  was  done,  when 
the  bankrupt  put  the  barley  into  the  sacks  eo  instanti  the  property  in 
each  sackful  vested  in  the  plaintiff.  I  consider  that  here  was  a  priori  an 
assent  by  the  plaintiff.     He  had  inspected  and  approved  of  the  barley 

-'  This  condensed  statement  of  facts  is  taken  from  Benjamin,  Sales  (5th 
Eng.  Ed.)  p.  347. 


104  UNASCERTAINED   GOODS APPROPRIATION  (Ch.  2 

in  bulk.  He  sent  his  sacks  to  be  filled  out  of  that  bulk.  There  can  be 
no  doubt  of  his  assent  to  the  appropriation  of  such  bulk  as  should  have 
been  put  into  the  sacks.  There  was  also  evidence  of  his  subsequent  ap- 
propriation, by  his  order  that  it  should  be  sent  on.  There  remained 
nothing  to  be  done  by  the  vendor,  who  had  appropriated  a  part  by  the 
direction  of  the  vendee.  It  is  the  same  as  if  boxes  had  been  filled  and 
sent  on  by  the  bankrupt,  in  which  case  it  cannot  be  disputed  that  the 
property  would  pass :  and  it  can  make  no  difterence  that  the  plaintiff 
ordered  the  sacks  to  be  forwarded  by  the  vendor.  As  to  the  question 
of  conversion,  the  property  being  in  the  plaintiff',  he  has  done  nothing 
to  divest  himself  of  it.  It  is  not  like  the  case  of  confusion  of  goods, 
where  the  owner  of  such  articles  as  oil  or  wine  mixes  them  with  sim- 
ilar articles  belonging  to  another.  That  is  a  wrongful  act  by  the  owner, 
for  which  he  is  punished  by  losing  his  property.  Here  the  plaintiff 
has  done  nothing  wrong.  It  was  wrong  of  the  bankrupt  to  mix  what 
had  been  put  into  the  sacks  with  the  rest  of  the  barley ;  but  no  wrong 
has  been  done  by  the  plaintiff.  That  being  so,  the  plaintift"'s  property 
comes  into  the  hands  of  the  defendant  as  the  bankrupt's  assignee.  If 
the  defendant  had  a  lien,  he  does  not  detain  the  barley  on  that  ground. 
He  denies  the  plaintiff's  property  altogether,  and  cannot  therefore  claim 
a  lien.  He  claims  all  the  barley,  and  claims  all  of  it  as  being  the  prop- 
erty of  the  bankrupt.  He  therefore  has  converted  the  plaintiff's  prop- 
erty. 

ErlE,  J.  I  also  am  clearly  of  opinion  that  the  property  in  what  was 
put  into  the  sacks  passed  to  the  plaintiff'.  It  is  clear  that,  where  there 
is  an  agreement  for  the  sale  and  purchase  of  a  particular  chattel,  the 
chattel  passes  at  once.  If  the  thing  sold  is  not  ascertained,  and  some- 
thing is  to  be  done  before  it  is  ascertained,  it  does  not  pass  till  it  is  as- 
certained. Sometimes  the  right  of  ascertainment  rests  with  the  vendee, 
sometimes  solely  with  the  vendor.  Here  it  is  vested  in  the  vendor  only, 
the  bankrupt.  When  he  had  done  the  outward  act  which  showed  which 
part  was  to  be  the  vendee's  property,  his  election  was  made  and  the 
property  passed.  That  might  be  shown  by  sending  the  goods  by  the 
railway :  and  in  such  case  the  property  would  not  pass  till  the  goods 
were  despatched.  But  it  might  also  be  shown  by  other  acts.  Here  was 
an  ascertained  bulk,  of  which  the  plaintiff'  agreed  to  buy  about  half.  It 
was  left  to  the  bankrupt  to  decide  what  portion  should  be  delivered 
under  that  contract.  As  soon  as  he  does  that,  his  election  has  been 
indicated;  the  decisive  act  was  putting  the  portion  into  the  sacks.  If 
it  were  necessary  to  rest  the  decision  on  the  assent  of  the  vendee  in 
addition  to  this,  I  am  of  opinion  that  there  is  abundant  evidence  of  such 
assent;  for  the  vendee  demanded,  over  and  over  again,  the  portion 
which  had  been  put  into  the  sacks.  I  think  Mr.  Blackburn  has  ex- 
pressed the  law  with  great  clearness  and  accuracy.  He  first  takes 
the  case  where  one  party  appropriates  and  the  other  assents ;  and  then 
die  case  where,  by  virtue  of  the  original  agreement,  the  authority  to 


Sec.  6)  UNASCERTAINED   GOODS APPROPRIATION  105 

appropriate  is  in  one  party  only.  As  to  the  question  of  conversion,  I 
am  of  opinion,  on  the  grounds  which  have  ah-eady  been  stated,  that 
the  assignee  has  converted  the  plaintiff's  property. 

Judgment  for  plaintiff,  as  to  the  part  put  into  the  sacks ;   as  to  the 
residue,  judgment  for  defendant."^ 


LANGTON  V.  HIGGINS. 

(Court  of  Exchequer,  1859.     4  Huri.  &  N.  402,  28  L.  J.  Exch.  252.) 

The  first  count  of  the  declaration  was  in  detinue  for  cases  and  bottles 
of  oil  of  peppermint.  The  second  count  was  in  trover  for  the  same 
goods. 

Pleas :  First,  not  guilty.  Secondly,  that  the  goods  were  not,  nor 
were  any  or  either  of  them,  the  plaintiff's  as  alleged. 

At  the  trial,  before  Martin,  B.,  at  the  London  sittings  after  last 
Hilary  term,  the  following  facts  appeared : — The  plaintiff  was  a  whole- 
sale druggist  in  London,  and  the  defendant  was  a  wholesale  druggist  at 
Liverpool.  For  many  years  past  the  plaintiff  had  been  in  the  habit  of 
contracting  with  one  Carter,  a  farmer  at  Leverington  in  Cambridge- 
shire, for  the  purchase  of  all  the  oil  of  peppermint  to  be  distilled  from 
the  crop  of  peppermint  which  might  be  grown  on  his  farm  in  that 
year.  The  contracts  were  made  in  the  early  part  of  the  year,  and  Car- 
ter obtained  from  the  plaintiff  advances  in  respect  of  them.  On  the 
27th  January,  1858,  the  plaintiff  and  Carter  entered  into  the  following 
agreement : 

"London,  Jan.  27th,  1858. 

"The  undersigned,  Frederick  Carter,  of  Leverington,  agrees  to  sell 
to  Messrs.  William  Langton  &  Co.,  of  London,  the  whole  of  his  crop 
of  oil  of  peppermint  grown  in  the  year  1858,  at  the  rate  of  21s.  per  lb. 

"But  should  the  said  crop  amount  to  250  bottles  of  oil,  he  agreed  to 
deduct  6d.  per  lb.  from  the  said  21s.  and  above  that  quantity  Is. 
per  lb.,  provided  the  Messrs._ Langton  find  the  said  21s.  per  lb.  is  more 
than  they  can  reasonably  afford. 

"This  agreement  is  made  upon  the  condition  that  Messrs.  Langton  & 
Co.  advance  the  said  Frederick  Carter  1000/.  on  account  of  the  above- 
named  crop,  and  pay  the  amount  due  at  the  time  of  delivery  by  two, 
four,  and  six  months  bills.  Fred.  Carter." 

Previously  to  this  agreement  advances  had  been  made  by  the  plain- 
tiff to  Carter  to  the  extent  of  £310.,  and  on  the  day  the  agreement  was 
signed  Carter  gave  to  the  plaintiff"  a  bill  of  sale  of  his  live  and  dead 
stock,  crop  of  oil  of  peppermint,  crops  of  corn,  furniture,  &c.,  as  a 
security  for  the  £310.  and  further  advances  to  the  extent  of  ilOOO. 
It  was  usual  for  the  plaintiff  to  send  to  Carter  bottles  to  be  filled  with 
the  oil  of  peppermint,  and,  in  September,  Carter  applied  for  the  bottles 

2  8  Concurring  opinions  were  delivered  by  Coleridge  and  Crompton,  J  J. 


106  UNASCERTAINED    GOODS APPROPRIATION  (Ch.  2 

and  some  gut-skin  to  cover  them.  The  plaintiff  accordingly  sent  him 
two  gross  of  bottles  with  gut-skin.  On  the  8th  of  October,  Carter 
wrote  to  the  plaintiff,  "We  shall  lose  no  time  in  getting  the  oil  off." 
It  was  the  business  of  Mrs.  Carter  to  put  the  oil  of  peppermint  in  the 
bottles,  which,  as  on  previous  occasions,  she  did  in  the  following  man- 
ner. She  first  weighed  the  empty  bottles  and  then  filled  them  with 
the  oil.  She  then  weighed  them  again,  having  previously  marked  the 
tare  and  weight  of  each  bottle  on  a  piece  of  paper  pasted  on  it.  She 
then  marked  the  gross  weight  of  the  oil  and  the  bottle,  and  added  them 
together  on  the  same  paper.  She  then  subtracted  the  tare  and  placed 
the  net  weight  and  the  number  of  the  bottle  upon  the  paper  and  laid 
the  bottle  aside.  After  the  bottles  were  filled,  by  Carter's  direction, 
she  made  out  invoices  and  address  cards,  which  she  placed  in  Carter's 
desk.  She  was  engaged  in  these  operations  about  nine  days,  and  fin- 
ished on  the  29th  of  September.  On  all  previous  occasions,  the  bottles, 
when  filled,  were  placed  in  cases  and  delivered  to  a  carrier  to  take  to 
the  railway  station,  to  be  forwarded  to  the  plaintiff  in  London.  Carter 
left  his  home  on  the  15th  of  October,  and  has  not  since  been  heard  of. 
The  defendant  purchased  of  Carter  fifteen  cases  of  the  oil  of  pepper- 
mint, nine  of  which  were  delivered  to  him  at  Liverpool  on  the  16th  of 
September,  and  the  others  on  the  23d. 

It  was  submitted  on  behalf  of  the  defendant  that  under  these  cir- 
cumstances the  property  in  the  oil  of  peppermint  did  not  vest  in  the 
plaintiff'.  The  learned  Judge  directed  a  verdict  for  the  plaintiff  for 
i626.  15s.,  reserving  leave  to  the  defendant  to  move  to  enter  a  nonsuit, 
or  to  reduce  the  amount  to  the  value  of  the  bottles. 

Bramwell,  B.  I  am  also  of  opinion  that  the  rule  ought  to  be  dis- 
charged. The  contract  is  to  sell  the  whole  of  the  vendor's  crop  of  oil 
of  peppermint  grown  in  a  certain  year.  I  do  not  think  that  when  the 
oil  was  made  the  property  passed, — possibly  there  may  have  been  an 
obligatio  certi  corporis ;  but  it  appears  to  me  that  when  the  oil  was  put 
into  the  plaintiff''s  bottles  the  property  in  it  vested  in  her.  I  do  not 
dissent  from  what  was  said  by  my  brother  Martin  with  respect  to  the 
delivery  to  a  carrier.  It  may  be  that  the  vendor  would  be  bound  to 
show  some  act  of  delivery  before  he  could  sue  for  the  price ;  but  how- 
I  ever  that'  may  be,  I  am  of  opinion  that  the  property  vested  in  the  plain- 
I  tiff'  when  the  oil  was  put  into  her  bottles.  Looking  at  the  principle, 
there  ought  to  be  no  doubt.  A  person  agrees  to  buy  a  certain  article, 
and  sends  his  bottles  to  the  seller  to  put  the  article  into.  The  seller 
puts  the  article  into  the  buyer's  bottles,  then  is  there  any  rule  to  say 
that  the  property  does  not  pass?  The  buyer  in  effect  says,  "I  will  trust 
you  to  deliver  into  my  bottles,  and  by  that  means  to  appropriate  to  me, 
the  article  which  I  have  bought  of  you."  On  the  other  hand  the  seller 
must  be  taken  to  say,  "You  have  sent  your  bottles  and  I  will  put  the 
article  in  them  for  you."  In  all  reason,  when  a  vendee  sends  his  ship, 
or  cart,  or  cask,  or  bottle  to  the  vendor,  and  he  puts  the  article  sold 


Sec.  6)         UNASCERTAINED  GOODS APPROPRIATION  107 

into  it,  that  is  a  delivery  to  the  vendee.  If  we  could  suppose  the  case 
of  a  metal  vessel  filled  with  a  commodity  which  rendered  the  vessel 
useless  for  subsequent  purposes,  it  would  be  monstrous  if  the  vendor 
could  say,  "I  have  destroyed  your  vessel  by  putting  into  it  the  article 
you  purchased,  but  still  the  property  in  the  article  never  passed  to  you." 
Or  suppose  a  vendor  was  to  deliver  a  ton  of  coals  into  the  vendee's  cel- 
lar, could  he  say,  "I  have  put  the  coals  in  your  cellar,  but  I  have  al  right 
to  take  them  away  again  ?" 

But,  independently  of  reason,  there  is  an  authority  on  the  subject. 
In  Blackburn  on  Contracts,  it  is  said  that  the  property  does  not  pass 
unless  there  is  an  intention  to  pass  it,  and  various  cases  are  cited  in 
support  of  that  position.  It  is  then  said,  page  151,  that  two  rules  have 
been  laid  down  on  the  subject.  The  first  is,  "that  where  by  the  agree- 
ment the  vendor  is  to  do  anything  to  the  goods,  for  the  purpose  of 
putting  them  into  that  state  in  which  the  purchaser  is  to  be  bound  to 
accept  them,  or  as  it  is  sometimes  worded,  into  a  deliverable  state,  the 
performance  of  those  things  shall  (in  the  absence  of  circumstances  in- 
dicating a  contrary  intention)  be  taken  to  be  a  condition  precedent  to 
the  vesting  of  the  property."  The  second  rule  is,  "that  where  any- 
thing remains  to  be  done  to  the  goods  for  the  purpose  of  ascertaining 
the  price,  as  by  weighing,  measuring,  or  testing  the  goods,  where  the 
price  is  to  depend  on  the  quantity  or  quality  of  the  goods,,  the  perform- 
ance of  those  things  also  shall  be  a  condition  precedent  to  the  transfer 
of  the  property,  although  the  individual  goods  be  ascertained,  and  they 
are  in  the  state  in  which  they  ought  to  be  accepted."  That  is  not  only 
good  law  but  good  sense.  Then,  can  there  be  more  complete  evidence 
of  intention  to  pass  the  property  than  when  the  vendee  sends  her  bot- 
tles to  be  filled  with  the  article  purchased,  and  the  vendor  puts  it  into 
the  bottles  ?  Therefore,  both  upon  principle  and  authority,  I  think  that 
the  property  in  the  oil  passed  to  the  plaintiff  when  it  was  put  into  the 
bottles.  The  case  of  Aldridge  v.  Johnson,  7  E.  &  B.  885  (E.  C.  L.  R. 
vol.  90),  is  precisely  in  point.  Lord  Campbell,  C.  J.,  there  said :  "Look- 
ing to  all  that  was  done  when  the  bankrupt  (the  vendor)  put  the  barley 
in  the  sacks,  eo  instanti  the  property  in  each  sack  full  passed  to  the 
plaintiff."  It  is  true  that  in  the  Law  Journal,  Erie,  J.,  is  reported  to 
have  said  that  the  outward  act  indicating  the  vendor's  intention,  was 
by  filling  the  sacks  "and  directing  them  to  be  sent  to  the  railway."  But 
Crompton,  J.,  who  doubted  upon  another  point,  said,  that  "when  the 
barley  was  put  into  the  sacks,  it  was  just  as  if  it  had  been  sent  by  a 
carrier."  Therefore  there  is  not  only  reason  and  general  authority, 
but  also  the  case  of  Aldridge  v.  Johnson,  to  warrant  our  judgment. 

The  only  difficulty  I  had  was  this :  Suppose  the  oil  of  peppermint 
had  been  badly  manufactured,  I  am  not  prepared  to  assent  to  the  ar- 
gument that  the  plaintiff  would  not  have  had  a  power  of  rejection. 
Again,  suppose  only  a  portion  of  the  oil  had  been  put  into  the  bottles, 
inasmuch  as  the  plaintiff  was  not  bound  to  take  a  part  only,  would  the 


108  UNASCBRTAIKED   GOODS APPROPRIATION  (Ch.  2 

property  vest?  Aldridge  v.  Johnson  is  an  authority  on  that  point.  It 
may  be  that  the  plaintiff  would  have  the  option  of  refusing  to  take  a 
part  only  of  the  oil  or  of  accepting  it,  but  that  right  is  not  inconsistent 
with  the  property  vesting  at  his  election.  It  might  vest  in  him  conclu- 
sively, but  at  all  events  it  would  vest  when  he  exercised  his  option. 
For  these  reasons.  I  think  that  the  rule  ought  to  be  discharged. 
Rule  discharged.-^ 


COLONIAL  INS.  CO.  v.  ADELAIDE  MARINE  INS.  CO. 

(Privy   Council,   1SS6.     12  A.   C.    128.) 

Sir  Barnes  Pkacock.^*^  This  is  an  appeal  from  a  judgment  of  the 
Supreme  Court  of  South  Australia  in  a  suit  in  which  the  Adelaide 
Marine  and  Fire  Assurance  Company,  now  the  respondents,  were 
plaintiffs,  and  the  Colonial  Insurance  Company  of  New  Zealand,  and 
certain  other  persons  to  Avhom  it  is  not  now  necessary  to  refer,  were 
defendants.  In  stating  their  reasons  for  the  recommendation  which 
their  Lordships  are  about  to  make  to  Her  I\Iajesty  in  Council,  they 
will,  for  the  sake  of  clearness,  speak  of  the  parties  to  this  appeal  re- 
spectively as  the  plaintiffs  and  the  defendants. 

The  suit  was  brought  upon  a  contract  of  insurance  alleged  to  have 
been  entered  into  by  the  defendants  with  the  plaintiff's. 

It  appeared  that,  on  the  29th  of  September,  1881,  Messrs.  jMorgan, 
Connor  &  Clyde  chartered-  a  vessel  called  the  Duke  of  Sutherland  to 
proceed  from  Algoa  Bay  to  a  good  and  safe  port  in  New  Zealand,  and 
there  to  load  from  the  charterers  a  full  and  complete  cargo  of  wheat 
in  bags,  and  being  so  loaded  to  proceed  direct  to  Queenstown,  Fal- 
mouth or  Plymouth,  at  captain's  option,  for  orders  to  be  given  within 
forty-eight  hours,  to  any  safe  port  in  the  United  Kingdom,  or  on  the 
Continent,  &c. 

By  the  terms  of  the  charterparty,  all  expenses  of  stowing  were  to 
be  paid  by  the  ship,  freight  to  be  payable  at  rates  specified  by  charter- 
party,  the  cargo  to  be  brought  to  and  taken  from  alongside  at  mer- 
chants' risk  and  expense,  thirty  working  days  to  be  allowed  for  load- 
ing, the  captain  to  sign  bills  of  lading  for  the  cargo,  according  to  the 
custom  of  the  port,  at  the  current  or  any  rate  of  freight,  without  prej- 
udice to  the  charterparty,  for  which  purpose  he  was  to  attend  daily 
at  the  charter's  or  agent's  offfce  during  business  hours  if  so  required, 
and  should  the  freight  list  according  to  bills  of  lading  show  a  less  sum 
on  aggregate  than  chartered  freight,  the  dift'erence  was  to  be  paid  in 
cash  prior  to  the  signing  of  bills  of  lading.  The  vessel  to  have  a  lien 
on  cargo  for  freight  and  demurrage. 

2  9  Concurring  opinions  were  delivered  by  Pollock,  C.  B.,  and  ^Martin,  B. 
so  Tlie  statement  of  facts  and  part  of  llie  opinion  are  omitted. 


Sec.  6)  UNASCERTAINED   GOODS APPROPRIATION  109 

Subsequently  Messrs.  Morgan,  Connor  &  Glyde  received  a  proposal 
in  a  letter,  dated  the  10th  of  March,  1882,  from  the  New  Zealand 
Grain  Agency,  to  supply  a  cargo  of  wheat  for  the  said  vessel  at  Tim- 
aru,  at  4s.  7d.,  free  on  board,  provided  she  had  sailed  from  Algoa 
Bay  for  that  port,  sacks  9d.  Messrs.  Morgan,  Connor  &  Glyde  ver- 
bally accepted  the  proposal. 

The  Duke  of  Sutherland  had  sailed  from  Algoa  Bay  at  the  date  of 
the  proposal,  and  she  arrived  at  Timaru  before  the  30th  of  March, 
1882.  The  plaintiffs  having  agreed  with  Messrs.  Morgan,  Connor  & 
Glyde  to  insure  the  cargo  of  wheat  for  a  sum  not  exceeding  £14,000, 
applied  to  the  defendants,  by  a  letter  dated  the  30th  of  March,  1882, 
to  hold  them  covered  for  not^  exceeding  i2000,  being  two-fourteenths 
interest  in  cargo  of  wheat  per  Duke  of  Sutherland,  at  and  from  Tim- 
aru to  United  Kingdom,  or  Continent.  F.  P.  A.  rate  charged  to  be 
that  ruling  in  New  Zealand  for  similar  risks. 

On  the  same  day  the  defendants  by  their  local  managers  sent  the 
following  answer : 

[Here  follows  a  letter  which  was  held  to  be  an  acceptance  of  the 
plaintiff's  proposal.] 

The  delivery  of  the  wheat  by  the  New  Zealand  Grain  Agency  on 
board  of  the  Duke  of  Sutherland  at  Timaru  commenced  shortly  after 
the  30th  of  March,  1882.  Before  the  completion  of  the  cargo,  viz., 
on  the  3d  of  May,  1882,  the  vessel  and  the  wheat  on  board  were  lost 
by  the  stranding  of  the  vessel  during  a  gale  at  Timaru.  It  was  ad- 
mitted by  the  defendants  that  the  vessel  was  seaworthy,  and  that  she 
was  lost  by  perils  of  the  seas.  At  the  time  of  the  loss  2500  bags  of 
wheat  out  of  a  total  cargo  of  13,000  remained  to  be  delivered  in  order 
to  complete  the  cargo. 

Messrs.  Morgan,  Connor  &  Glyde  paid  the  New  Zealand  Grain 
Agency  for  the  wheat  which  they  had  put  on  board,  and  the  plaintiff's 
having  paid  Messrs.  Morgan.  Connor  &  Glyde  for  the  loss  of  wheat, 
in  accordance  with  their  contract  for  insurance,  called  upon  the  de- 
fendants to  indemnify  them,  in  accordance  with  their  contract  of  cover. 
The  defendants  denied  their  liability,  and  the  plaintiffs  commenced 
an  action  against  them  in  the  Supreme  Court  of  South  Australia.  The 
cause  was  tried  before  the  Honourable  Samuel  James  Way,  the  learned 
Chief  Justice  of  the  Court,  who  gave  judgment  in  favour  of  the  plain- 
tiffs and  on  motion  by  way  of  appeal  to  the  Full  Court  the  appeal  was 
dismissed. 

The  present  appeal  is  from  the  judgment  of  the  Full  Court. 
*     *     » 

Upon  the  argument  before  their  Lordships,  the  learned  counsel  for 
the  defendants  contended,  1st,  that  there  was  no  contract  of  insurance; 
2d,  that  at  the  time  of  the  loss  the  risk  had  not  commenced;  3d,  that 
the  plaintiffs  had  no  insurable  interest.     *     *     * 

The  last  objection,  viz.,  that  the  plaintiffs  had  not  an  insurable  in 


110  UNASCERTAINED    GOODS APPROPRIATION  (Ch.  2 

terest,  was  the  most  important  one.  It  depends  upon  the  (question 
whether  Messrs.  Morgan,  Connor  &  Glyde  had  an  insurable  interest, 
for  if  they  had  not  an  insurable  interest  the  plaintiffs  had  not  an  in- 
surable interest,  and  the  payment  by  the  plaintiffs  to  them  under  their 
policy  was  a  mere  voluntary  payment.     *     *     * 

In  Anderson  v.  Morice,  1  App.  Cas.  713,  it  was  held  by  the  Ex- 
chequer Chamber,  reversing  a  unanimous  judgment  of  the  Court  of 
Common  Pleas,  that  the  property  in  the  rice  which  was  put  on  board 
the  seller's  vessel  in  the  course  of  completing  the  cargo,  and  which  was 
lost  by  perils  of  the  sea  before  the  cargo  was  complete,  did  not  vest 
in  Anderson  under  his  agreement  for  purchase ;  that  there  was  noth- 
ing to  shew  that  it  was  to  be  at  his  risk,  and  consequently  that  he  had 
no  insurable  interest.  The  decision  of  the  Exchequer  Chamber,  from 
which  one  of  the  judges,  Mr.  Justice  Quain,  dissented,  was  appealed 
to  the  House  of  Lords,  and  affirmed,  the  noble  Lords  who  heard  the 
appeal  being  equally  divided  in  opinion. 

Their  Lordships,  notwithstanding  the  great  diversity  of  opinions 
expressed  in  that  case,  are  not  prepared  to  throw  any  doubt  as  to  the 
correctness  of  the  decision.  But  admitting  it  as  an  authority  to  the 
fullest  extent,  they  consider  that  it  is  not  applicable  to  the  circum- 
stances of  the  present  case. 

In  each  of  the  cases  the  insurance  was  on  a  "cargo,"  a  word  which, 
as  already  pointed  out,  is  susceptible  of  different  meanings  in  diff'erent 
contracts,  and  which  must  be  interpreted  with  reference  to  the  con- 
text. 

In  Anderson  v.  Morice,  Law  Rep.  10  C.  P.  58,  1  App.  Cas.  713,  An- 
derson agreed  with  Messrs.  Borradaile,  Schiller  &  Co.  to  purchase  the 
cargo  of  new  crop  Rangoon  rice  per  Sunbeam  at  9s.  l^od.  per  cwt. 
cost  and  freight,  expected  to  be  March  shipment.  Payment  by  seller's 
draft  on  purchaser  at  six  months'  sight  with  documents  attached.  The 
cargo  to  be  purchased  in  that  case  was  an  entire  thing,  and  was  not 
in  existence  at  the  time  when  the  contract  was  entered  into,  and  would 
not  be  in  existence  until  the  whole  cargo  should  be  put  on  board. 

In  the  present  case  the  vendors  did  not  sell  a  particular  cargo  on 
board  a  ship  chartered  by  them,  but  merely  offered  to  supply  a  cargo 
of  wheat  for  the  Duke  of  Sutherland  at  4s.  '7d.,  free  on  board  at  Tim- 
aru.  No  time  or  mode  was  fixed  for  payment,  and  nothing  was  said 
as  to  the  place  to  which  the  cargo,  when  supplied  and  put  on  board, 
was  to  be  carried,  or  to  the  effect  that  the  sellers  were  to  have  any- 
thing to  do  with  bills  of  lading  or  other  shipping  documents.  The 
purchasers  accepted  the  oft'er,  they  themselves  being  the  charterers  of 
the  Duke  of  Sutherland,  whereas  in  Anderson  v.  Morice,  Law  Rep. 
10  C.  P.  58,  1  App.  Cas.  713,  the  firm  who  agreed  to  sell  the  cargo 
of  rice  by  the  Sunbeam  were  themselves  the  charterers  of  that  vessel, 
and  v>^ere  to  receive  freight  for  the  carriage  of  the  rice,  such  freight 
being  included  in  the  purchase-money.     In  putting  the  rice  on  board 


Sec.  6)  UNASCERTAINED   GOODS APPROPRIATION  111 

the  Sunbeam  the  sellers  were  not  delivering  it  to  Anderson,  but  were 
putting  it  on  board  a  vessel,  of  which  they  were  the  charterers,  for 
the  purpose  of  completing  the  cargo  which  they  had  agreed  to  sell. 
The  master  of  the  Sunbeam  received  it  on  their  account,  and  not  on 
account  of  the  purchasers.  The  purchasers'  right  was  to  depend  on 
the  shipping  documents  which  were  to  be  under  the  direction  of  the 
sellers. 

In  the  present  case,  in  putting  the  wheat  on  board  the  Duke  of  Suth- 
erland, the  contractors  were  delivering  it  to  the  purchasers  in  pursu- 
ance of  their  contract  to  put  it  free  on  board,  the  master  of  the  ves- 
sel which  had  been  chartered  by  them  being  their  agent  to  receive  it 
on  their  account.  The  shipowners  received  it  under  the  charterparty 
by  which  they  bound  themselves  to  load  from  the  charterers  a  full  and 
complete  cargo,  and  to  proceed  with  it,  &c.,  as  ordered  by  the  charter- 
ers or  their  agents.  The  sellers  had  nothing  to  do  with  the  wheat,  or 
the  destination  thereof  after  it  was  on  board,  and  by  putting  it  on 
board  they  did  not  render  themselves  liable  to  the  owners  of  the  ship 
for  freight,  demurrage,  commission,  or  any  other  charges  provided  for 
by  the  charterparty.  The  master  would  not  have  been  justified  m  re- 
turning to  the  sellers  any  portion  of  the  wheat  without  the  authority 
of  the  purchasers,  who  were  entitled  under  the  charterparty  to  have 
bills  of  lading  signed  for  it  as  directed  by  them  according  to  the  terms 
stipulated  by  the  charterparty.  From  the  very  nature  of  the  contract 
to  supply  a  cargo  of  wheat  for  a  ship  of  1047  tons  register,  and  which 
it  is  admitted  would  consist  of  13,000  bags  of  wheat,  it  could  not  have 
been  intended  that  the  whole  supply  should  be  completed  at  the  same 
moment  or  even  in  a  single  day.  By  the  charter  thirty  days  were  to 
be  allowed  for  the  loading,  and  upon  a  proper  construction  of  the  con- 
tract of  sale,  in  which  nothing  was  stipulated  as  to  the  time  of  deliv- 
ery or  payment,  the  sellers  would  have  a  reasonable  time  to  deliver  it 
on  board.  By  the  charterparty  the  cargo  was  to  be  brought  to  and 
taken  from  alongside  at  merchant's  risk  and  expense.  By  the  vendors' 
contract  they  were  to  put  it  free  on  board  for  the  charterer,  and  when 
put  on  board  the  master  would  receive  it  for  the  purchasers  and  hold 
it  for  them. 

In  many  cases  of  contract  to  supply  a  quantity  of  goods  to  be  de- 
livered within  a  fixed  period,  the  whole  quantity  cannot,  from  the  very 
nature  of  the  case,  be  delivered  at  one  time,  and  it  must  frequently 
happen,  as  in  contracts  for  supplies  of  provision  for  the  army  or  navy, 
or  any  large  establishments,  that  the  quantities  first  delivered  are  ap- 
propriated and  actually  consumed  by  the  persons  to  whom  they  are 
delivered  before  the  expiration  of  the  period  within  which  the  whole 
contract  is  to  be  performed.  As  no  time  was  fixed  by  the  contract 
for  the  payment  of  the  purchase-money  the  purchasers  might  not  have 
been  bound,  if  no  loss  had  occurred,  to  pay  for  the  wheat  put  on  board 
from  time  to  time  until  the  whole  cargo  had  been  supplied ;   but  it  does 


112  UNASCERTAINED  GOODS APPROPRIATION  (Ch.  2 

not  follow  that  they  had  not  an  insurable  interest  before  the  price  was 
paid  or  payable.  It  appears  from  what  follows  that  a  man  may  have 
an  insurable  interest  in  goods  for  which  he  has  neither  paid  nor  be- 
come liable  to  pay. 

In  the  present  case,  if  no  loss  had  happened,  and  the  sellers,  with- 
out lawful  excuse,  had  neglected  to  supply  a  complete  cargo,  the  pur- 
chasers must  have  paid  for  the  wheat  which  had  been  put  on  board, 
unless  they  returned  it.  If  the  sellers  had  completed  the  cargo  the 
purchasers  m.ust  have  paid  for  the  whole.  In  either  case  they  had,  at 
the  time  of  the  loss,  an  interest  in  the  part  which  had  been  put  on 

(board.  In  the  one  case,  that  they  might  be  able  to  return  it  to  excuse 
them  from  payment  for  it  in  the  event  of  their  electing  to  put  an  end 
to  the  contract  in  case  of  the  non-completion  of  the  supply ;  in  the 
other,  that  they  might  have  the  goods  for  which  they  would  be  obliged 
to  pay. 

In  Oxendale  v.  Wetherell.  9  B.  &  C.  oS^T,  it  was  correctly  stated  by 
;Mr.  Justice  Parke,  that  '■\\'here  there  is  an  entire  contract  to  deliver 
a  large  quantity  of  goods,  consisting  of  distinct  parcels,  within  a  spec- 
itied  time,  and  the  seller  delivers  part,  he  cannot  before  the  expiration 
of  the  time  bring  an  action  to  recover  the  price  of  the  part  delivered, 
because  the  purchaser  may,  if  the  vendor  fail  to  complete  his  contract, 
return  the  part  delivered.  But  if  he  retain  the  part  delivered  after  the 
I  seller  has  failed  to  perform  his  contract,  the  latter  may  recover  the 
I  value  of  the  goods  which  he  has  so  delivered."  In  the  case  cited  it 
was  decided  accordingly.  Applying  the  law  as  laid  down  in  that  case 
to  the  present,  the  purchasers,  if  no  loss  had  occurred,  might,  subject 
i:o  the  rights  of  the  shipowners  to  their  lien  for  freight  under  the  char- 
terparty,  have  returned  the  wheat  which  had  been  put  on  board  if  the 
contractors  had,  without  any  lawful  excuse,  refused  to  supply  a  full 
cargo  within  a  reasonable  time,  but  they  would  not  have  been  obliged 
to  do  so ;  they  might  have  retained  and  paid  for  the  part  delivered, 
and  sued  the  contractors  for  damages  for  not  completing  their  con- 
tract ;  on  the  other  hand  it  is  clear  that  the  sellers  could  not  without 
the  consent  of  the'  purchasers  in  the  case  supposed  have  taken  out 
of  the  ship  the  whole  of  the  wheat  which  they  had  put  on  board,  and 
have  compelled  the  ship  to  go  empty  away,  because  they  themselves 
had  failed  to  complete  their  contract.     *     *     * 

Their  Lordships  are  of  opinion  that  the  delivery  of  the  wheat  from 
time  to  time  was  a  delivery  to  the  purchasers,  that  it  vested  in  them 
the  right  of  possession  as  well  as  the  right  of  property,  and  that  at 
the  time  of  the  loss  it  was  at  their  risk.  The  right  which  they  had  to 
return  the  v.heat  which  had  been  delivered,  in  the  event  of  the  sellers 
neglecting,  without  lawful  excuse,  to  complete  the  supply,  did  not  pre- 
vent them  from  having  an  insurable  interest.  The  interest  in  this  case 
was  defeasible,  not  by  the  vendors,  but  at  the  option  of  the  vendees  in 
the  event  of  the  vendors  not  completing  the  contract.     *     *     * 


Sec.  6)  UNASCERTAINED    GOODS APPROPRIATION  113 

They  will,  therefore,  humbly  recommend  Her  ^Majesty  to  affirm  the 
judgment  of  the  full  bench,  and  to  dismiss  the  appeal. 
The  appellants  must  pay  the  costs  of  the  appeal. 


ROCHESTER  &  OLEOPOLIS  OIL  CO.  v.  HUGHEY. 

(Supreme  Court  of  Pennsylvania,   1867.     56  Pa.  322.) 

Before  Thompson,  Strong,  Read  and  Agnew,  JJ.  Woodward, 
C.  J.,  absent. 

Error  to  the  Court  of  Common  Pleas  of  Alleghany  county:  No.  92, 
to  October  and  November  Term,  1867. 

In  the  court  below  the  Rochester  &  Oleopolis  Oil  Company  brought 
an  action  of  assumpsit  to  September  1866,  against  J.  M.  Hughey,  to 
recover  the  price  of  a  quantity  of  oil  alleged  to  have  been  sold  and  de- 
livered by  the  plaintiffs  to  the  defendant. 

The  oil  having  been  burned,  the  question  was  whether  the  delivery 
was  complete  before  the  burning. 

The  plaintiffs  gave  evidence,  by  the  deposition  of  A.  L.  Burnett, 
their  agent,  that  he  sold  to  Owsten,  the  agent  of  the  defendant,  four 
barge-loads  of  oil.  about  2200  barrels,  at  $4.50  per  barrel,  deliverable 
at  Oleopolis,  to  be  measured  in  the  iron  tanks  of  the  Pennsylvania 
Tube  Company. 

The  tube  company  receives  the  oil  at  the  oil  regions  in  their  tubes ; 
it  is  transported  through  the  tubes  and  received  into  the  tanks  of  the 
company  at  the  several  shipping  points  on  the  Alleghany  river.  The 
oil  of  the  respective  owners  is  not  kept  separate,  but  is  measured  when 
received  by  the  tube  company,  and  is  delivered  to  the  order  of  the 
owner  by  measurement  at  the  tanks. 

The  evidence  of  plaintiff's  further  was,  that  495  gallons  had  been 
run  on  the  afternoon  of  June  19th,  1866,  into  a  barge  furnished  by 
Owsten ;  another  barge  was  placed  under  the  tanks,  and  about  450 
barrels  had  passed  into  it,  when  the  oil  took  fire,  and  both  barges  and 
the  oil  were  burned. 

The  plaintiff's  then  off'ered  to  prove  that  by  the  custom  of  the  trade 
at  Oleopolis  the  barges  to  receive  the  oil  were,  during  the  delivery, 
in  the  custody  and  control  of  the  purchaser.  This  was  objected  to  by 
the  defendant,  rejected  by  the  court,  and  a  bill  of  exceptions  sealed. 

Owsten,  the  defendant's  agent,  testified  for  him,  that  he  made  the 
contract  for  four  boat-loads  of  oil,  about  2000  barrels ;  he  sent  two 
boats  to  receive  it;  he  received  word  that  his  boat  was  drawing  25 
inches  of  water,  and  the  river  was  falling ;  he  went  to  Oleopolis.  and 
found  the  river  rising,  and  that  another  boat  was  loading  outside  of 
his ;  he  told  the  agent  of  the  company  that  he  would  load  his  boat  five 
WooDw.  Sales — S 


114  UNASCERTAINED   GOODS APPROPRIATION  (Ch.  2 

inches  more,  and  therefore  did  not  move  her  from  the  wharf.  After 
the  boat  that  had  been  loading  near  his  was  filled  and  moved  away, 
he  placed  an  empty  boat  by  his  first  boat,  and  the  tube  company's 
hands  let  the  oil  into  the  second  boat;  before  this  boat  was  full,  draw- 
ing but  about  17  inches,  it  took  fire,  and  both  boats  with  oil  were 
burned.  He  testified,  also :  "the  boats  were  not  in  a  condition  to  run 
•to  Pittsburg;  he  intended  to  put  more  in  them,  to  fill  them  to  30  in- 
ches of  water." 

In  rebuttal,  the  plaintiff  proposed  to  ask  the  superintendent  of  the 
tube  company,  "whether,  at  any  time  whilst  you  were  superintending, 
or  since,  within  your  knowledge,  the  tubing  company,  or  the  owners 
of  oil  in  the  tanks,  kept  persons  at  the  works  for  the  purpose  of  tak- 
ing charge  of  the  boats  whilst  the  oil  was  being  delivered." 

The  offer  was  rejected  by  the  court,  and  a  bill  of  exceptions  sealed 
for  the  plaintiff. 

The  plaintiff  requested  the  court  to  charge  the  jury: 

1.  That  if  the  oil  sold  by  plaintiff  to  Hughey  was  to  be  measured 
in  the  tanks  of  the  Pennsylvania  Tubing  Transportation  Company,  and 
delivered  in  barges  furnished  by  Hughey,  and  the  barges  were,  during 
the  course  of  delivery,  in  possession  and  control  of  Hughey,  or  his 
agents,  the  oil  was  delivered  as  soon  as  it  entered  the  barges,  so  far 
as  to  change  the  property  as  between  seller  and  buyer,  and  the  plaintiff 
would  be  entitled  to  recover  the  value  of  the  oil  so  delivered  in  the 
barges. 

2.  That  if  the  jury  find  that  the  barges  were,  during  the  time  of  de- 
livery of  the  oil,  in  the  custody  of  the  plaintiff,  nevertheless,  as  soon 
as  any  portion  .of  the  oil  was  separated  from  the  common  bulk,  by 
measurement  from  the  tanks,  it  became  the  property  of  the  defendant, 
and  was  at  his  risk,  and  ^-he  plaintiffs  would  be  responsible  only  for 
loss  occasioned  by  their  nrgligence. 

3.  If  the  jury  find  that  it  was  the  duty  of  the  Pennsylvania  Tubing 
Transportation  Company  to  take  charge  of  and  control  the  barges 
while  the  oil  was  in.  course  of  delivery,  that  the  company  would  be  the 
common  agent  of  plaintiff  and  defendant,  and  any  portion  of  the  oil, 
as  soon  as  separated  from  the  common  bulk,  would  be  the  property  of 
the  defendant,  and  at  his  risk,  and  the  plaintiff  would  be  entitled  to 
recover  for  the  value  of  the  oil  so  delivered. 

The  points  were  all  refused. 

The  defendant,  in  his  2d  point,  requested  the  court  to  charge  that 
under  the  contract  the  defendant  was  not  bound  to  accept  a  delivery 
of  oil  from  the  plaintiff  in  any  less  quantity  than  that  of  one  full  boat, 
the  question  of  whether  the  boat  was  full  or  not  to  be  decided  by  the 
defendant  or  his  agent,  Mr.  Owsten,  only. 

To  which  the  court  answered :  "Affirmed  if  you  believe  the  contract 
to  be  for  the  sale  of  oil  by  the  boat-loads." 


Sec.  6)  UNASCERTAINED    GOODS APPROPRIATION  115 

The  court  (Stowe,  A.  J.)  charged : 

"The  first  point  is  as  to  what  the  contract  was : 

"If  it  was  to  be  deHvered  in  boat-loads,  and  the  purchaser  had  the 
right  to  say  when  the  boat  was  loaded,  and  you  should  find  that  this 
boat  was  not  accepted  by  defendant's  agent,  and  that  he  was  not  bound 
to  accept  it  because  it  was  not  a  boat-load,  that  is,  not  filled  so  that  he 
was  bound  to  take  it  from  the  vendor,  then  there  was  no  delivery  in 
law,  and  plaintiff  cannot  recover. 

"If  you  should  find,  however,  that  the  first  boat  was  reasonably  load- 
ed, so  that  purchaser  was  bovuid  to  accept,  or  that  the  boat  was  ac- 
tually taken  into  his  charge  so  as  to  waive  the  right  to  have  more  oil 
out  into  it,  then  plaintiff  can  recover  for  that. 

"As  to  the  oil  running  into  the  boats  at  the  time,  there  was  no  de- 
livery of  that  in  law,  because  if  the  contract  was  for  delivery  in  boat- 
loads, about  2CX)0  gallons  as  stated  by  the  witnesses  on  both  sides,  the 
boat  was  not  filled  so  that  plaintiff  was  bound  to  take  it  from  the 
vendor. 

"As  to  this  latter  it  is  clear  under  all  the  evidence  that  if  the  plain- 
tiff had  shut  off  the  oil  and  requested  defendant  to  pay  for  what  was 
in  the  boat,  he  could  not  have  compelled  defendant  to  receive  it,  nor 
to  pay  for  it. 

"In  reference  to  the  first  boat,  was  there  anything  further  to  be  done 
before  the  plaintiff'  had  a  right  to  require  the  defendant  to  take  and 
pay  for  it? 

"That  depends  upon  whether  the  barge  was  sufficiently  full,  or  not 
being  full,  whether  Owsten,  defendant's  agent,  had  already  taken  pos- 
session of  it,  under  such  circumstances  as  to  indicate  he  was  satisfied 
to  take  it  as  it  was. 

"As  to  the  latter  the  plaintiff  cannot  recover  in  this  action,  because 
it  is  not  pretended  that  the  boat  was  in  a  condition  to  deliver." 

The  verdict  was  for  the  defendant. 

The  plaintiff's  took  a  writ  of  error,  and  assigned  for  error  the  re- 
jection of  their  offers  of  evidence;  the  answers  of  the  court  to  their 
points,  and  to  the  defendants"  second  point,  and  that  "the  court  erred 
in  the  whole  charge  and  in  each  part  thereof,  and  especially  in  the  as- 
sumption that  the  plaintiff  was  not  entitled  to  recover  unless  the  boats 
were  so  loaded  that  the  defendants  were  bound  to  accept  them.'' 

Thompson,  C.  J.  The  question  was  submitted  to  the  jury  on  the 
trial  below,  and  they  found  that  the  contract  between  the  plaintiff  and 
defendant  was  for  the  sale  and  delivery  of  four  barge-loads  of  oil,  and 
not  a  sale  of  oil  by  the  barrel.  Of  course  until  delivery  no  specific  oil 
passed  to  the  defendant.  Until  this  took  place,  he  had  only  a  right  of 
action  to  recover  for  a  breach  of  contract. 

It  is  unnecessary  to  say  whether  the  defendant  was  bound  to  take, 
and  pay  for  the  number  of  barrels  in  each  completely  laden  barge ;  if 
there  be  a  question  about  that,  it  is  not  here — but  whether  the  contents 


116  DELIVERY    TO   CARRIER    AS    APPROPRIATION  (Ch.  2 

of  partially  laden  barges  in  progress  of  being  filled  passed  as  fast  as 
it  entered  the  barge.  The  court  thought  not,  and  so  decidedly  think 
we.  The  defendant  could  not  be  compelled  to  take  a  partly  filled  barge 
when  he  had  contracted  for  full  ones,  any  more  than  if  he  had  con- 
tracted for  a  barrel  of  oil  could  he  have  been  compelled  to  accept  one 
half  or  quarter  full.  This  would  hardly  be  contended  for,  yet  the  prin- 
ciple is  the  same.  AMnslow,  Lanier  &  Co.  v.  Leonard,  24  Pa.  14,  62 
Am.  Dec.  354;  Story  on  Sales,  §§  296,  299.  Under  the  finding  of  the 
jury  there  is  little  room  for  argument  against  the  ruling  complained 
of.  Nor  do  we  see  any  error  in  rejecting  the  oft'ers  of  testimony.  Not 
one  of  the  assignments  of  error  were  according  to  the  rule  and  we 
might  have  dismissed  them  all  without  notice,  but  did  not,  hoping  for 
more  accuracy  in  the  future. 
Judgment  affirmed. 


SECTION  7.— DELIVERY  TO  CARRIER  AS  APPROPRIATION 


S^IITH  et  al.  v.  EDWARDS  et  al. 

(Supreme  Judical  Court  of  Massachusetts,  1S92.    lot;  Mass.  221,  .30  N.  E.  1017.) 

HoLMKS,  J.  This  case  comes  before  us  on  the  exception  of  the  Old 
Colony  Railroad  Company  to  a  ruling  of  the  court  below  that  it  should 
be  charged  as  trustee  of  the  defendants.  The  defendants  have  been 
defaulted.  The  bill  of  exceptions  purports  to  state  the  evidence  intro- 
duced on  the  motion  to  charge  the  trustee,  but  does  not  disclose  the 
findings  of  the  judge.  We  assume  them  to  have  been  the  most  favor- 
able for  the  ruling  which  the  bill  of  exceptions  warrants.  The  defend- 
ants in  Ohio  ordered  of  the  plaintift's,  who  are  manufacturers  of  boots 
and  shoes  in  Alassachusetts,  through  the  plaintiffs"  traveling  salesman, 
certain  calf  and  buff  shoes,  to  be  made  according  to  a  sample  shown 
to  the  defendants.  It  was  assumed  at  the  argument,  and  we  assume, 
that  the  contract  bound  the  defendants,  that  there  is  no  question  un- 
der the  statute  of  frauds,  and  that  the  shoes  were  made  according  to 
sample.  They  were  forwarded  over  the  Old  Colony  Railroad,  we  must 
assume,  if  it  be  material,  at  the  defendants'  expense,  and  were  deliv- 
ered to  the  defendants.  This  mode  of  forwarding  undoubtedly  was 
authorized  by  the  contract.  The  defendants  accepted  the  buff  shoes., 
but  refused  to  accept  the  calf  shoes,  and  shipped  the  latter  back  to  the 
plaintift's  by  the  same  railroad.  The  plaintift's  refused  to  accept  them, 
sued  the  defendants  for  the  price  of  the  shoes,  and  trusteed  the  rail- 
road company.  The  calf  shoes  mentioned  are  the  goods  for  which  the 
railroad  company  was  charged. 


Sec.  7)  DELIVERY    TO   CARRIER    AS    APPROPRIATION  117 

It  is   argued   for  the  trvistees  that,  although   the  defendants  were 
guilty  of  a  breach  of  contract  in  refusing  to  accept  the  calf  shoes,  yet, 
as  the  shoes  were  not  in  existence  at  the  date  of  the  contract,  they  did . 
not  become  the  defendants'  property  until  tendered  to  and  accepted  byl 
the  defendants,  after  they  were  made. 

Of  course,  the  title  to  the  shoes  could  not  be  vested  in  the  defend- 
ants without  their  consent.  But,  in  the  present  state  of  the  law,  it  does 
not  need  argument  to  show  that  a  contract  can  be  made  in  such  a  way 
as  subsequently  to  pass  the  title,  as  between  the  parties,  to  goods  un- 
ascertained at  the  time  when  the  contract  is  made,  without  a  subse- 
quent acceptance  by  the  buyer,  if  the  contract  commits  the  buyer  in 
advance  to  the  acceptance  of  goods  determined  bv  other  marks. 
Blanchard  v.  Cooke,  144  Mass.  207,  227,  11  N.  E.  83;  Goddard  v. 
Binney,  115  Mass.  450,  15  Am.  Rep.  112;  Rodman  v.  Guilford,  112 
Mass.  405,  407;  Brewer  v.  Railroad  Co.,  104  Mass.  593,  595;  Nichols 
V.  Morse,  100  Mass.  523 ;  Middlesex  Co.  v.  Osgood,  4  Gray,  447,  449 ; 
Aldridge  v.  Johnson,  7  El.  &  Bl.  885,  899. 

In  the  case  of  goods  to  be  manufactured,  the  seller,  as  he  has  to  ten- 
der them  generally,  has  the  right  to  appropriate  goods  to  the  contract, 
so  far  that,  if  he  tenders  goods  conformable  to  it,  the  buyer's  refusal 
to  accept  them  is  a  breach.  The  buyer  cannot  say  that  he  would  have 
accepted  some  other  goods  had  they  been  tendered.  When  goods  arei 
to  be  manufactured  and  forwarded  by  a  carrier  to  a  buyer  at  a  dis-l 
tance,  the  seller's  delivery  of  such  goods  to  the  carrier,  as  bailee  for  | 
the  purchaser,  passes  the  title.  The  seller  cannot  forward  them  until 
they  are  specified.  The  delivery  is  an  overt  dealing  with  the  goods  as 
those  to  which  the  contract  applies,  and  puts  them  into  a  possession  ad- 
verse to  the  seller.  Although  not  strictly  a  delivery,  it  is  an  act  having 
the  legal  effect  of  a  true  delivery,  which,  in  common  legal  language, 
it  is  said  to  be.  Hallgarten  v.  Oldham,  135  Mass.  1,  9,  46  Am.  Rep. 
433 ;  Orcutt  v.  Nelson,  1  Gray,  536,  543 ;  Merchant  v.  Chapman,  4 
Allen,  362,  364;  Kline  v.  Baker,  99  Mass.  253,  254.  The  act  is  re- 
quired of  the  seller  by  the  terms  of  the  contract,  and  thus  is  assented 
to  in  advance  by  the  buyer,  on  the  condition  that,  as  supposed,  the 
goods  answer  the  requirements  of  the  contract.  Therefore  it  is  a 
binding  appropriation  of  the  goods  to  the  contract,  and  passes  the  ti- 
tle, as  we  have  said.  Putnam  v.  Tillotson,  13  Mete.  517,  520;  Mer- 
chant V.  Chapman,  4  Allen,  362,  364;  Odell  v.  Railroad  Co.,  109  Mass. 
50;  Wigton  v.  Bowlev,  130  Alass.  252,  254;  Fragano  v.  Long,  4  Barn. 
&  C.  219;  Wait  v.  Baker,  2  Exch.  1,  7. 

The  present  case  could  be  disposed  of  upon  a  narrower  ground.  It 
would  be  enough  to  say  that,  so  far  as  we  can  see,  the  judge  who  heard 
the  motion  to  charge  the  trustee  was  warranted  in  finding  as  a  fact  that 
the  defendants  authorized  the  plaintiffs  to  appropriate  the  shoes  to  the 
contract,  even  if  the  inference  was  not  necessary  as  matter  of  law.  The 
question  always  is  what  intent  the  parties  have  expressed,  either  in 


118  DELIVERY    TO   CARRIER    AS    APPROPRIATION  (Ch.  2 

terms  or  by  reasonable  implication.  Anderson  v.  IMorice,  L.  R.  1  App. 
Cas.  713;  Navigation  Co.  v.  De  :\Iattos,  32  Law  J.  Q.  B.  322,  328,  23 
Law  J.  O.  B.  214. 

lExceptions  overruled. 


BARTON  V.  KANE. 

(Supreme  Court  of  Wisconsin,  1863.     17  Wis.  37,  84  Am.  Dec.  728.) 

Action  to  recover  the  contract  price  of  cigars  and  tobacco  alleged  to 
have  been  sold  and  delivered  to  the  defendant  by  the  plaintiff. 
*     *     * 

\'erdict  for  the  plaintiff',  motion  for  a  new  trial  overruled,  and  judg- 
ment upon  the  verdict,  from  which  the  defendant  appealed. ^^ 

Dixon,  C.  j.  *  *  *  ^\^q  motion  for  judgment  of  nonsuit  should 
have  been  granted.  The  cigars  forwarded  exceeded  the  quantity  or- 
dered. The  order  was  for  5.000,  but  the  plaintiff  sent  5,625.  This 
was  no  compliance  with  the  order,  and  imposed  no  obligation  on  the 
defendant,  without  showing  an  acceptance  in  fact  by  him  after  the 
cigars  were  received,  the  burden  of  which  was  upon  the  plaintiff.  To 
constitute  a  delivery  to  the  carrier  a  delivery  to  the  consignee,  so  as 
to  pass  the  title  and  make  the  consignee  liable  for  goods  sold  and  de- 
livered, the  goods  must  correspond  in  quantity  as  well  as  quality,  with 
those  named  in  the  order.  Bruce  v.  Pearson,  3  Johns.  (N.  Y.)  534, 
and  Downer  v.  Thompson,  2  Hill  (N.  Y.)  137,  are  clear  upon  this  ques- 
tion ;  and  though  the  latter  %vas  reversed  in  the  court  of  errors  (6  Hill 
[N.  Y.]  208)  the  main  point  of  reversal  cannot  arise  here.  There  can 
be  no  pretense  that  the  625  extra  cigars  were  sent  out  of  an  abundance 
of  caution,  and  to  insure  a  scriptural  compliance  with  the  order.  They 
were  sent  to  fill  up  the  case,  and  the  defendant  was  charged  with  their 
price.  To  entitle  himself  to  recover  under  these  circumstances,  the 
plaintiff'  should  have  shown  that  the  defendant  actually  received  and 
accepted  the  cigars  sent,  upon  the  terms  indicated  in  the  plaintiff's  let- 
ter notifying  him  of  the  consignment. 

\Mien  goods  ordered  prove  defective  in  quality,  it  is,  in  general,  in- 
cumbent on  the  purchaser  to  notify  the  seller  of  his  nonacceptance  on 
that  ground;  else  he  is  deemed  to  waive  the  objection,  and  to  consent 
to  keep  and  pay  for  them  according  to  the  terms  specified.  In  such 
case  it  is  considered  sufficient  evidence  of  acceptance,  that  the  pur- 
chaser has  not  returned  or  off'ered  to  return  the  goods,  or  notified  the 
seller  of  his  non-acceptance.  But  whether  the  same  rule  of  evidence 
should  be  applied  where  the  quantity,  known  to  the  seller,  is  greater 
or  less  than  that  ordered,  may  well  admit  of  doubt.  Defects  in  qual- 
ity may  exist  without  the  seller's  knowledge.  There  is  nothing  in  such 
circumstance  which  necessarily  implies  bad  faith  or  a  disposition  on 

31  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  7)  DELIVERY    TO   CARRIER    AS    APPROPRIATION  119 

his  part  not  to  fulfill  the  contract.  But  where  he  knowingly  sends 
more  or  less  goods  than  are  ordered,  he  is  guilty  of  an  intentional  vio- 
lation of  the  contract  which  he  undertakes  to  perform,  and  his  con- 
duct savors  of  bad  faith;  and  it  would  seem  that  he  has  no  right  to 
presume  that  the  purchaser  will  accept,  or  to  rely  on  notice  of  refusal. 
He  must  show  an  actual  acceptance,  by  proving  either  that  the  pur- 
chaser retained  and  used  the  goods  or  that  he  did  some  other  act  from 
which  his  assent  may  be  presumed.  The  nonsuit,  therefore,  at  the 
time  it  was  moved,  was  proper  and  should  have  been  granted.  *  *  * 
Judgment  reversed  and  a  new  trial  awarded. 


STATE  V.  O'NEIL. 

STATE  V.  FOUR  JUGS  OF  INTOXICATING  LIQUOR. 

STATE  V.  SIXTY-EIGHT  JUGS  OF  INTOXICATING  LIQUOR 

(Supreme  Court  of  Vermont,  ISSo.     58  Vt.  146,  2  Atl.  586,  56  Am.  Rep.  557.) 

RoYCE,  C.  J.^-  The  first  and  most  important  question  presented  by 
these  cases  is  whether  or  not  the  intoxicating  liquors  in  question  were, 
(in  the  first  two  cases,)  in  contemplation  of  law,  sold  or  furnished  by 
the  respondent  in  the  county  of  Rutland  and  state  of  Vermont ;  or  (in 
the  last  two  cases)  held  and  kept  for  the  purpose  of  sale,  furnishing, 
or  distribution,  contrary  to  the  statute,  within  said  county  and  state. 
The  answer  depends  upon  whether  the  National  Express  Company, 
by  which  some  of  said  liquors  were  delivered  to  the  consignees  there- 
of, and  in  whose  possession  the  remainder  were  found  and  seized  be- 
fore delivery,  was  in  law  the  agent  of  the  vendors  or  of  the  vendees. 
If  the  purchase  and  sale  of  the  liquors  was  fully  completed  in  the  state 
of  New  York,  so  that  upon  delivery  of  them  to  the  express  company 
for  transportation  the  title  vested  in  the  consignees,  as  in  the  case  of 
a  completed  and  unconditional  sale,  then  no  offense  against  the  laws 
of  this  state  has  been  committed.  If,  on  the  other  hand,  the  sale,  by 
its  terms,  could  only  become  complete  so  as  to  pass  the  title  in  ,the 
liquors  to  the  consignees  upon  the  doing  of  some  act  or  the  fulfilling 
of  some  condition  precedent  after  they  had  reached  Rutland,  then 
the  rulings  of  the  county  court  upon  the  question  of  the  offense  were 
correct. 

The  liquors  were  ordered  by  residents  of  \^ermont  from  dealers 
doing  business  in  the  state  of  New  York,  who  selected  from  their 
stock  such  quantities  and  kinds  of  goods  as  they  thought  proper,  in 
compliance  with  the  terms  of  the  orders,  put  them  up  in  packages,  di- 
rected them  to  the  consignees,  and  delivered  them  to  the  express  com- 
pany as  a  common  carrier  of  goods  for  transportation,  accompanied 

32  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


120  DELIVERY    TO   CARRIER    AS    APPROPRIATION  (Cll.  2 

with  a  bill  or  invoice,  for  collection.  The  shipment  was  in  each  in- 
stance, which  it  is  necessary  here  to  consider,  C.  O.  D.,  and  the  cases 
show  that  the  effect  of  the  transaction  was  a  direction  by  the  shipper 
to  the  express  company  not  to  deliver  the  goods  to  the  consignees  ex- 
cept upon  the  payment  of  the  amounts  specified  in  the  C.  O.  D.  bills, 
together  with  the  charges  for  the  transportation  of  the  packages  and 
for  the  return  of  the  money  paid.  This  direction  was  understood  by 
the  express  company,  which  received  the  shipments  coupled  there- 
with. 

Whether  or  not,  and  when,  the  legal  title  in  property  sold  passes 
|from  the  vendor  to  the  vendee  is  always  a  question  of  the  intention 
lof  the  parties,  which  is  to  be  gathered  from  their  acts,  and  all  the 
I  facts  and  circumstances  of  the  case  taken  together.  In  order  that  the 
[title  may  pass,  as  was  said  by  Morton,  J.,  in  ]\Iason  v.  Thompson,  18 
Pick.  (Mass.)  305,  "the  owner  must  intend  to  part  with  his  property, 
and  the  purchaser  to  become  the  immediate  owner.  Their  two  minds 
must  meet  on  this  point,  and  if  anything  remains  to  be  done  before 
either  assents,  it  may  be  an  inchoate  contract,  but  it  is  not  a  perfect 
sale."  The  authorities  seem  to  be  uniform  upon  this  point;  and  the 
acts  of  the  parties  are  regarded  as  evidence  by  which  the  court  or 
jury  may  ascertain  and  determine  their  intent.  Benj.  Sales,  §§  311, 
319,  note  c.  When  there  is  a  condition  precedent  attached  to  the 
contract,  the  title  in  the  property  does  not  pass  to  the  vendee  until 
performance  or  waiver  of  the  condition,  even  though  there  be  an  ac- 
tual delivery  of  possession.  Benj.  Sales,  §  320,  note  d.  The  Ver- 
mont cases  to  the  above  points  are  referred  to  in  Robert's  Digest,  610 
et  seq.,  and  need  not  be  specially  reviewed  here. 

In  the  cases  under  consideration  the  vendors  of  the  liquors  shipped 
them  in  accordance  with  the  terms  of  the  orders  received,  and  the 
mode  of  shipment  was  as  above  stated.  They  delivered  the  packages 
of  liquors,  properly  addressed  to  the  several  persons  ordering  the 
same,  to  the  express  company  to  be  transported  by  that  company,  and 
delivered  by  it  to  the  consignees  upon  fulfillment  by  them  of  a  speci- 
fied condition  precedent,  namely,  payment  of  the  purchase  price  and 
transportation  charges,  and  not  otherwise.  Attached  to  the  very  body 
of  the  contract,  and  to  the  act  of  delivery  to  the  carrier,  was  the  con- 
dition of  payment  before  delivery  of  possession  to  the  consignee. 
With  this  condition  unfulfilled  and  not  waived,  it  would  be  impossible 
to  say  that  a  delivery  to  the  carrier  was  intended  by  the  consignor  as 
a  delivery  to  the  consignee,  or  as  a  surrender  of  the  legal  title.  The 
goods  were  intrusted  to  the  carrier  to  transport  to  the  place  of  desti- 
nation named,  there  to  present  them  for  acceptance  to  the  consignee, 
and  if  he  accepted  them,  and  paid  the  accompanying  invoice  and  the 
transportation  charges,  to  deliver  them  to  him ;  otherwise  to  notify 
the  consignor,  and  hold  them  subject  to  his  order.  It  is  difficult  to 
see  how  a  seller  could  more  positively  and  unequivocally  express  his 
intention  not  to  relinquish  his  right  of  property  or  possession  in  goods 


Sec.  7)  DELIVERY    TO   CARRIER    AS    APPROPRIATION  121 

until  payment  of  the  purchase  price  than  by  this  method  of  shipment. 
We  do  not  think  the  case  is  distinguishable  in  principle  from  that  of 
a  vendor  who  sends  his  clerk  or  agent  to  deliver  the  goods,  or  for- 
wards them  to,  or  makes  them  deliverable  upon  the  order  of,  his 
agent,  with  instructions  not  to  deliver  them  except  on  payment  of  the 
price  or  performance  of  some  other  specified  condition  precedent  by 
the  vendee.  The  vendors  made  the  express  company  their  agent  in 
the  matter  of  the  delivery  of  the  goods,  with  instructions  not  to  part 
with  the  possession  of  them  except  upon  prior  or  contemporaneous 
receipt  of  the  price.  The  contract  of  sale  therefore  remained  inchoate 
or  executory  while  the  goods  were  in  transit,  or  in  the  hands  of  the 
express  company,  and  could  only  become  executed  and  complete  by 
their  delivery  to  the  consignee.  There  was  a  completed  executory 
contract  of  sale  in  New  York ;  but  the  completed  sale  was,  or  was  to 
be,  in  this  state. 

The  authorities  upon  the  above  points  and  principles  are  so  numer- 
ous, and  are  so  fully  collated  in  the  brief  of  the  learned  counsel  for 
the  state,  and  in  the  text  and  notes  of  2  Benj.  Sales,  (4th  Amer.  Ed.,) 
that  we  refrain  from  specific  references  in  support  of  the  conclusions 
at  which  we  have  arrived.  These  are  fully  supported  by  the  decision 
of  the  United  States  district  court  in  Illinois,  (People  v.  Shriver,  31 
Alb.  Law  J.  163,  s.  c.  23  Fed.  134,)  a  case  involving  precisely  the 
same  question.  Treat,  J.,  says  in  the  opinion:  "In  the  case  of  liquor 
shipped  by  the  defendant  to  Fairfield  by  express,  C.  O.  D.,  the  liquor 
is  received  by  the  express  company  at  Shawneetown  as  the  agent  of 
the  seller,  and  not  as  the  agent  of  the  buyer,  and  on  its  reaching 
Fairfield  it  is  there  held  by  the  company  as  the  agent  of  the  seller  un- 
til the  consignee  comes  and  pays  the  money,  and  then  the  company, 
as  the  agent  of  the  seller,  delivers  the  liquor  to  the  purchaser.  In 
such  case  the  possession  of  the  express  company  is  the  possession  of 
the  seller,  and  generally  the  right  of  property  remains  in  the  seller 
until  the  payment  of  the  price.  An  order  from  a  person  in  Fair- 
field to  the  defendant  at  Shawneetown  for  two  gallons  of  liquor  to 
be  shipped  to  Fairfield,  C.  O.  D.,  is  a  mere  offer  by  the  person  sending 
such  order  to  purchase  two  gallons  of  liquor  from  the  defendant,  and 
pay  him  for  it  when  he  delivers  it  to  him  at  Fairfield,  and  a  shipment 
by  the  defendant  according  to  such  order  is  practically  the  same  as 
if  the  defendant  had  himself  taken  two  gallons  of  liquor  from  his 
store  in  Shawneetown,  carried  it  in  person  to  Fairfield,  and  there  de- 
livered it  to  the  purchaser,  and  received  the  price  of  it.  It  would  be 
different  if  the  order  from  Fairfield  to  defendant  was  a  simple  order 
to  ship  two  gallons  of  liquor  by  express  to  the  person  ordering,  wheth- 
'er  such  order  was  accompanied  by  the  money  or  not.  The  monient 
the  liquor,  under  such  an  order,  was  delivered  to  the  express  com- 
pany at  Shawneetown,  it  would  become  the  property  of  the  person 
ordering,  and  the  possession  of  the  express  company  at  Shawnee- 
town would  be  the  possession  of  the  purchaser, — the  sale  would  be 


122  DELIVERY    TO  CARRIER    AS    APPROPRIATION  (Ch.  2 

a  sale  at  Shawneetown — and  if  it  were  lost  or  destroyed  in  transit 
the  loss  would  fall  upon  the  purchaser.  But  in  the  case  at  bar,  the 
shipping  of  the  liquor  to  Fairfield,  C.  O.  D.,  the  defendant  made  no 
sale  at  Shawneetown;  the  right  of  property  remained  in  himself,  and 
the  right  of  possession,  as  well  as  the  actual  possession,  remained  in 
him  through  his  agent.  Had  it  been  lost  or  destroyed  in  transit,  the 
loss  would  have  fallen  on  himself.  He  simply  acted  upon  the  re- 
quest of  the  purchaser,  and  sent  the  liquor  to  Fairfield  by  his  own 
agent,  and  there  effected  a  sale  by  receiving  the  money  and  delivering 
the  liquor."     *     *     *  33 


STATE  v.  PETERS. 
•      (Supreme  Judicial  Court  of  Maine.  1S97.     91  Me.  31,  39  Atl.  342.) 

Exceptions  from  Superior  Court,  Kennebec  County. 

Henry  B.  Peters  was  indicted  for  selling  butterine  contrary  to  sec- 
tion 3,  c.  128,  Rev.  St.,  prohibiting  the  sale  and  manufacture  of  adul- 
terated butter. 

When  the  case  was  closed  for  the  state,  the  respondent  submitted 
his  cause  without  evidence,  and  seasonably  asked  the  court  to  instruct 
the  jury  that,  upon  all  the  facts  of  the  case,  the  sale  alleged  in  the 
indictment  did  not  take  place  in  the  county  of  Kennebec,  and  that  it 
was  therefore  the  duty  of  the  jury  to  render  a  verdict  of  not  guilty. 
The  presiding  justice  declined  to  so  rule,  and  a  verdict  of  guilty  was 
thereupon  rendered,  and  respondent  brings  exceptions.     Sustained. 

Savage;,  J.  The  only  question  presented  by  the  exceptions  in  this 
case  is  whether,  upon  all  the  facts  in  the  case,  the  sale  of  butterine 
alleged  in  the  indictment  did  or  did  not  take  place  in  the  county  of 
Kennebec. 

From  the  undisputed  facts  it  appears  that  on  December  14,  1896, 
one  McLaughlin,  then  residing  in  Augusta,  wrote  to  the  Portland 
Beef  Company,  of  which  concern  the  respondent  was  manager,  the 
following  letter: 

"Old  Orchard,  Me.,  Dec.  14th,  1896.  Portland  Beef  Co.— Gentle- 
men :  Quote  me  price  of  butterine,  the  same  I  have  used  the  past 
two  seasons  (Lincoln  flats,  colored).  Upon  receipt  of  order,  how  soon 
can  you  ship  me  three  (3)  tubs,  C.  O.  D.  American  express?  An  early 
reply  will  oblige.     Resp'y,  yours,  C.  E.  McLaughlin." 

33A  writ  of  error  in  tliis  case  was  cUsuiissed  by  tlie  Supreme  Court  of  the 
United  States  (144  U.  S.  323,  12  Sup.  Ct.  693,  36  L.  Ed.  450  [1S92]),  a  ma- 
jorit.v  of  the  court  beiug  of  the  opinion  that  no  federal  question  was  in- 
volved. 

In  State  v.  American  Express  Co.,  118  Iowa,  447.  92  N.  W.  66  (1902),  cer- 
tain considerations  of  public  policy  which  give  support  to  the  doctrine  of 
State  V.  O'Noil  were  emphasized. 


Sec.  7)  DELIVERY    TO   CARRIER    AS    APPROPRIATION  123 

The  respondent  on  the  same  day  answered  as  follows : 

"Portland,  Me.,  Dec.  14th,  1896.  Air.  C.  E.  AIcLaughlin,  Old  Or- 
chard— Dear  Sir:  Replymg  to  your  letter  of  Dec.  14th,  quote  you 
3  40-lb.  tubs  butterine,  14c.  If  we  receive  your  order  at  once,  same 
will  be  shipped  in  car  from  Chicago,  Thursday,  arriving  here  a  week 
from  Monday.     Yours,  respectfully,  H.  B.  Peters." 

On  the  following  day,  McLaughlin  wrote  this  letter  to  the  Port- 
land Beef  Companv : 

"Old  Orchard,  Me.,  Dec.  15th,  1896.  Portland  Beef  Co.— Gentle- 
men :  You  may  ship  me  via  American  Express,  C.  O.  D.,  as  soon  as 
possible,  3  40-pound  tubs  butterine  (Lincoln  flats,  colored),  same  as 
I  have  been  using,  at  14c.  Very  resp'y,  C.  E.  McLaughlin,  Old  Or- 
chard." 

Although  McLaughlin's  letters  were  dated  "Old  Orchard"  for  rea- 
sons of  his  own,  they  were  in  fact  written  and  mailed  at  Augusta. 
To  the  last  letter  the  respondent  made  no  reply,  but  on  December  24, 
1896,  he  delivered  the  three  tubs  of  butterine  ordered  to  the  Ameri- 
can Express  Company,  at  Portland,  to  be  sent  C.  O.  D.  to  McLaugh- 
lin, at  Old  Orchard.  Subsequently,  by  direction  of  McLaughlin,  with 
the  consent  of  the  respondent,  the  butterine  in  question  was  reship- 
ped  from  Old  Orchard  to  Augusta  by  the  express  company,  and  there 
delivered  to  McLaughlin  upon  payment  of  the  price  and  the  transpor- 
tation charges.     • 

It  is  contended  on  the  part  of  the  state  that  these  transactions  con- 
stituted a  sale  of  the  butterine  at  Augusta.  It  is  strenuously  claimed 
that  the  respondent's  letter  of  December  14th  was  an  offer  or  proposal 
to  sell  McLaughlin  three  40-pound  tubs  of  butterine  at  14  cents  a 
pound,  and  that  McLaughlin's  letter  of  December  15th,  written  and 
mailed  at  Augusta,  was  an  acceptance  of  that  offer.  Hence  it  is  ar- 
gued that  the  sale  was  made  at  Augusta. 

If  the  state  is  right  in  its  premises,  it  is  also  right  in  its  conclusion. 
If  we  regard  the  respondent's  letter  as  an  offer,  the  acceptance  of  that 
offer  completed  the  trade,  accomplished  the  sale,  struck  the  bargain; 
and,  in  accordance  with  well-settled  principles  of  law,  such  a  sale 
would  be  deemed  to  have  been  made  at  Augusta,  the  place  where  the 
offer  was  accepted. 

But  the  trouble  with  the  position  of  the  state  is  that  the  respond- 
ent's letter  of  December  14th  cannot  be  considered  as  an  offer  or  pro- 
posal. It  was  simply  an  answer  to  McLaughlin's  letter  of  inquiry 
of  the  same  date.  McLaughlin  asked  for  a  quotation  of  prices,  and 
how  soon  the  butterine  could  be  shipped  on  receipt  of  an  order.  The 
respondent  gave  the  desired  information, — nothing  more.  The  most 
that  can  be  said  is  that  it  contemplated  a  possible  offer  by  McLaugh- 
lin to  buy  if  the  price  and  time  of  delivery  were  satisfactory.  If, 
after  this,  the  respondent  had  refused  to  fill  McLaughlin's  order  of 
December  15th.  he  could  not  have  been  held  liable  for  a  breach  of  con- 
tract to  sell.     The  letter  of  the  respondent  contained  no  undertaking 


l24  DELIVERY    TO   CARRIER    AS    APPROPRIATION  (Cll.  2 

whatever  to  sell.  Howard  v.  Industrial  School,  78  Me.  230,  3  Atl. 
657;  Smith  v.  Gowdy,  8  Allen  (Mass.)  566. 

In  McLaughlin's  letter  of  December  15th  we  find  the  first  oft'er.  It 
was  an  order, — an  offer  to  buy.  His  proposition  to  buy  was  accepted 
by  the  respondent,  by  delivering  the  butterine  ordered  to  the  carrier 
designated  by  the  consignee.  This  constituted  the  sale.  The  delivery 
was  at  Portland,  and  not  at  Augusta. 

But  the  state  contends  that,  taking  the  transaction  as  a  whole,  it  is 
evident  that  the  vendor  did  not  intend  to  part  with  the  title  to  the 
butterine  until  it  was  paid  for  by  the  consignee  to  the  carrier ;  that 
from  the  fact  that  the  butterine  was  shipped  C.  O.  D.,  which  means 
to  "deliver  upon  payment  of  the  charges  due  the  seller  for  the  price, 
and  the  carrier  for  the  carriage  of  the  goods"  (State  v.  Intoxicating 
Liquors,  73  Me.  278),  the  jury  would  be  authorized  to  find  that  the 
vendor  reserved  the  jus  disponendi  until  payment.  And  authorities 
to  this  eft'ect  are  cited.  But  such  is  not  the  law  in  this  state,  in  the 
absence  of  controlling  circumstances ;  and  there  was  nothing  in  the 
order,  or  in  the  accevjtance  and  the  shipment  of  the  butterine  in  this 
case,  to  take  it  out  of  the  general  rule  touching  the  shipment  of  goods 
I  on  order  C.  O.  D.  The  delivery  to  the  carrier  designated  by  the  con- 
fsignee  was  a  delivery  to  the  consignee,  subject  to  the  vendor's  lien. 
The  language  of  Mr.  Chief  Justice  Peters  in  State  v.  Intoxicating 
Liquors,  supra,  is  full  and  expressive  upon  this  point:  "The  con- 
tract stands  upon  the  simple  rule  of  the  common  law.  The  seller 
was  entitled  to  his  price,  and  the  buyer  to  his  property,  as  concurrent 
acts.  The  title  passed  to  the  vendee  when  the  bargain  was  struck. 
Any  loss  of  the  property  by  accident  would  have  been  his  loss.  The 
vendor  had  a  lien  on  the  goods  for  his  price.  The  vendor  could  sue 
for  tlie  price,  and  the  vendee,  upon  a  tender  of  the  price,  could  sue 
for  the  property."     We  adhere  to  this  rule. 

It  further  appears  that,  after  the  butterine  was  shipped,  the  Port- 
land Beef  Company,  represented  by  the  respondent,  attempted  to  at- 
tach it  at  Old  Orchard,  and  did  attach  it  at  Augusta,  after  McLaugh- 
lin had  paid  the  C. '  O.  D.  bill,  to  secure  an  old  debt  due  from  Mc- 
Laughlin. From  the  evidence  it  is  claimed  that  an  inference  may  be 
legitimately  drawn,  and  that  the  jury  were  authorized  to  find,  that  it 
was  not  the  intention  of  the  respondent  to  part  with  the  title  until 
the  butterine  was  paid  for;  that  the  respondent  shadowed  the  goods 
so  that  they  could  be  attached  as  soon  as  they  became  the  property  of 
McLaughlin  by  payment.  We  think  otherwise.  The  acts  of  the  re- 
spondent in  the  attempt  to  secure  the  old  bill  show  rather  an  intention 
to  attach  as  soon  as  the  vendor's  lien  was  removed  by  payment.  It 
would  have  been  fruitless  to  attach  before. 

There  is  no  evidence  in  the  case  which  would  warrant  the  jury  in 
finding  that  the  sale  of  the  butterine  took  place  at  Augusta.  The 
jury  should  have  been  so  instructed,  as  requested  by  the  respondent, 
in   substance.     The  presiding  judge  declined  to  so  instruct,  and  the 


Sec.  7)  DELIVERY    TO   CARRIER    AS    APPROPRIATION  125 

jury  were  permitted  to  find  that  the   sale  did  in   fact  take  place  in 
Augusta, — a  finding  which  had  no  evidence  to  support  it. 
Exceptions  sustained. 


HUNTER  BROS.   MILLING   CO.  v.   KRAMER  BROS. 

(Supreme  Court  of  Kansas,  1905.     71  Kan.  468,  80  Pac.  963.) 

Error  from  District  Court,  Sumner  County;  C.  L-  Swarts.  Judge. 

Action  by  the  Hunter  Bros.  Milling  Company  against  Kramer 
Bros.  Judgment  for  defendants,  and  plaintiff  brings  error.  Re- 
versed. 

Action  brought  by  Hunter  Bros.  Milling  Company  to  recover  from 
Kramer  Bros.  $900  as  damages  for  failure  to  deliver  bran  purchased 
from  the  defendants  and  paid  for  by  the  plaintiff.  Hunter  Bros. 
Milling  Company  was  engaged  in  business  in  St.  Louis,  and  on  May 
13,  1903,  Kramer  Bros.,  who  were  in  the  milling  business  at  Welling- 
ton, Kan.,  sent  the  following  telegraphic  message  in  cypher,  and  when 
translated  it  read : 

"Wellington,  Kan.,  May  13,  1903.  To  Hunter  Bros.,  St.  Louis, 
Mo.  We  offer  to  sell  you  1,200  sacks  of  bran  for  74  cents  per  sack, 
delivered  in  St.  Louis,  and  to  be  shipped  in  the  month  of  May. 
Kramer  Bros." 

In  response  to  this  telegram  Hunter  Bros,  sent  the  following  mes- 
sage: 

"St.  Louis,  Mo.,  May  13,  1903.  To  Kramer  Bros.,  WelHngton, 
Kansas.  We  offer  to  pay  you  73  cents  per  hundred-pound  sack  of 
bran  and  80  cents  per  hundred-pound  sack  of  your  best  white  mid- 
dlings, delivered  in  East  St.  Louis  in  May.  Answer  by  telegram  im- 
mediately and  send  samples.     Hunter  Bros." 

To  this  oft'er  Kramer  Bros,  replied  bv  wire : 

"Wellington,  Kan.,  May  13,  1903.  To  Hunter  Bros.,  St.  Louis, 
Mo.  We  accept  your  offer  of  7Z  cents  per  hundred-pounds  sacked 
bran,  delivered  in  East  St.  Louis,  May  delivery,  and  will  send  you  1,- 
600  sacks.     Send  instructions  immediately.     Kramer  Bros." 

In  confirmation  of  their  first  telegram,  Hunter  Bros,  sent  the  fol- 
lowing letter  : 

"St.  Louis,  Mo.,  U.  S.  A.,  May  13,  1903.  Messrs.  Kramer  Bros., 
Wellington,  Kan. — Gentlemen:  We  have  your  telegram,  'Offer  1,200 
sacks  bran  74,  East  St.  Louis,  May  shipment.'  We  wired  you  offer- 
ing 73c.  for  bran  100s  and  80c.  for  your  white  middlings,  100s,  East 
St.  Louis,  for  j\Iay  shipment,  and  stated  to  send  samples.  We  now 
await  your  reply.     Yours  truly.  Hunter  Bros." 

Kramer  Bros,  also  wrote  a  letter  confirming  their  second  telegram, 
stating : 

"Wellington,  Kan.,  5-13-1903.  Hunter  Bros.,  St.  Louis,  Mo.— 
Gentlemen :     By   exchange   of   telegrams  we   confirm  sale  to  you   of 


12G  DELIVERY    TO   CARRIER    AS    APPROPRIATION  (Ch.  2 

1,600  sacks  of  bran,  May  shipment,  73c.  f.  o.  b.  St.  Louis.  Please 
send  shipping  instructions  as  early  as  possible,  and  oblige,  Yours 
truly,  Kramer  Bros." 

Following  the  telegram  of  acceptance,  Plunter  Bros,  wrote  the  fol- 
lowing letter : 

"St.  Louis,  Mo.,  U.  S.  A.,  May  13,  1903.  Messrs.  Kramer  Bros., 
Wellington,  Kan. — Dear  Sirs:  We  have  your  telegram,  'Accept  73 
sacked  bran,  1,600  sacks.  Send  instructions  immediately.'  We  mail 
you  our  stencil,  mark  each  and  every  sack  with  same,  load  the  cars 
20  tons  to  each  and  bill  care  C.  &  A.,  East  St.  Louis.  The  sacks 
must  be  new.  Do  not  forget  to  use  the  stencil.  For  your  middlings, 
like  your  former  make  we  can  pay  you  80c,  East  St.  Louis.  Yours 
truly.  Hunter  Bros." 

Then  followed  this  postal  card : 

"Office  of  Kramer  Brothers,  .^tna  Mills.  Wellington,  Kan.,  May 
16,  1903.  Hunter  Bros.,  St.  Louis.  Mo.  We  are  in  receipt  of  your 
valued  order  of  5-14-03  for  1600  sacks  bran  for  St.  Louis,  Mo.  We 
will  enter  order  at  once  for  shipment  as  directed.  Please  accept 
thanks.     Very  respectfully  yours,  Kramer  Bros." 

This  was  followed  by  a  letter  from  Hunter  Bros. : 

"St.  Louis,  Mo.,  U.  S.  A.,  May  18,  1903.  Messrs.  Kramer  Bros., 
Wellington,  Kan. — Dear  Sir:  We  have  your  postal  of  16th.  All  our 
purchases  are  made,  'delivered  East  St.  Louis.'  Kindly  bear  this  in 
mind.     Yours  truly.  Hunter  Bros.   Milling  Company." 

Within  a  few  days  Kramer  Bros,  loaded  and  shipped  to  the  Hun- 
ter Bros.  Milling  Company  four  cars  of  bran.  When  the  bills  of 
lading  were  received  by  the  Hunter  Bros.  Milling  Company,  it  re- 
mitted to  Kramer  Bros,  the  entire  amount  due  on  the  four  car  loads. 
Only  two  car  loads  were  received,  and  the  remaining  two  appear  to 
have  been  caught  in  the  flood  and  the  bran  destroyed.  In  the  mean- 
time bran  had  greatly  advanced  in  price,  and  this  action  was  brought 
to  recover  the  damages  sustained  by  the  failure  to  deliver  the  two  cars 
of  bran.  After  hearing  the  testimony  offered  on  behalf  of  the  plain- 
tiff, the  court  sustained  a  demurrer  thereto  and  gave  judgment  in  fa- 
vor of  the  defendants.    The  plaintiff  alleges  error. 

I  Johnston,  C.  J.  (after  stating  the  facts).  The  plaintiff  bought  and 
paid  for  four  car  loads  of  bran,  only  two  of  which  it  received.  The 
defendants  acknowledge  that  payment  was  made  for  the  whole  of  the 
bran,  and  concede  that  one-half  of  it  never  reached  the  plaintiff.  It 
was  all  sacked  and  shipped  under  the  contract  in  accordance  with 
plaintiff's  directions,  and  the  question  in  dispute  is,  who  was  the  own- 
er of  the  bran  while  it  was  in  transit.  If  the  plaintiff  acquired  the 
bran,  and  was  the  owner  from  the  time  the  shipment  was  made  at 
Wellington,  it  must  bear  the  loss ;  but,  on  the  other  hand,  if  the  bran 
was  to  be  delivered  at  East  St.  Louis  and  title  was  not  to  pass  until 
delivery  there,  the  loss  must  be  borne  by  the  defendants,  and  the  plain- 


I 


I 


I 


vSeC.  7)  DELIVERY    TO   CARRIER    AS    APPROPRIATION  127 

tiff  was  entitled  to  recover.  The  contract  of  the  parties  is  contained 
in  the  telegrams  and  letters  included  in  the  statement.  The  inten-j*-^ 
tion  of  the  parties  necessarily  governs  in  determining  when  the  title|f 
passed.  We  must  look  to  their  correspondence  to  ascertain  their  in- 
tention with  respect  to  the  place  of  the  delivery  and  the  time  of  the 
passing  of  the  title  to  the  property.  In  the  absence  of  a  stipulation 
or  of  restrictions  respecting  the  transfer  of  title,  a  sale  of  the  prop- 
erty designed  for  shipment,  and  the  delivery  of  the  same  to  a  carrier, 
consigned  to  the  purchaser,  will  ordinarily  constitute  a  delivery  to  the 
purchaser,  and  operate  to  transfer  the  title  to  him.  If,  under  the 
contract,  the  seller  is  to  deliver  the  things  soM  at  a  designated  place, 
and  receive  payment  on  the  delivery,  the  general  rule  is  that  the  title 
will  not  pass  until  delivery  is  there  made. 

In  this  transaction  the  correspondence  indicates  with  reasonable  I ' 
clearness  that  the  defendants  were  to  put  the  bran  in  sacks  and  lay 
it  down  in  East  St.  Louis  for  a  specified  price.  The  telegraphic  of- 
fer of  plaintiff  was,  in  effect,  that  if  defendants  would  deliver  bran 
in  100-pound  sacks,  without  limiting  the  quantity,  in  East  St.  Louis, 
in  May,  the  plaintiff  would  pay  them  at  the  rate  of  72)  cents  per  hun- 
dred. The  offer  was  accepted  in  a  telegram,  which,  as  the  witness 
translated  it,  specified  a  delivery  in  East  St.  Louis,  and  fixed  the  quan- 
tity sold  at  L600  sacks.  In  connection  with  the  teleg'-ams,  the  let- 
ters confirming  them  plainly  contemplated  a  delivery  by  the  defend- 
ants at  East  St.  Louis.  In  the  one  written  by  defendants  confirming 
the  sale,  after  specifying  the  quantity  sold,  the  time  of  shipment,  and 
the  price,  there  followed  the  expression  "f.  o.  b.  St.  Louis." 

Some  complaint  is  made  that  the  plaintiff  was  not  permitted  to 
show  the  meaning  of  the  characters  "f.  o.  b."  Some  of  the  courts 
have  accepted  proof  as  to  the  meaning  of  the  letters  when  used  by 
parties  in  a  business  contract,  while  others  have  deemed  them  to  be 
in  such  general  use  in  contracts  of  sale,  and  so  well  understood,  that 
their  meaning  is  a  matter  of  common  knowledge,  and  of  which  the 
courts  must  take  notice.  We  are  inclined  to  the  view  that  in  con- 
tracts of  this  character  judicial  knowledge  may  be  taken  of  these  char- 
acters, and  that  parol  evidence  is  ordinarily  not  needed  in  their  in- 
terpretation. If  outside  proof,  however,  was  necessary,  it  appears 
that  the  court  in  one  instance  overruled  an  objection  to  this  class  of 
testimony,  and  allowed  the  interpretation  given  by  the  witness  to 
stand.  That  interpretation  conforms  to  the  one  which  is  generally 
understood  in  the  business  world,  and  that  is  "free  on  board,"  and  as 
used  in  this  contract  would  signify  free  on  board  the  cars  at  St.  Louis. 

The  contract  for  the  sale  of  the  bran  then  determined  the  quantity,! 
the  quality,  the  price,  and  the  place  of  delivery,  and  showed  that  the] 
delivery  was  to  be  made  free  on  board  the  cars  at  St.  Louis,  and  not] 
at  the  place  of  shipment.     If  the  contract,  by  its  terms,  had  not  ex- 
pressly  provided    for  a   delivery  of   the  bran   by   defendants    at   St. 
Louis,  the  fact  that  the  defendants  were  to  pay  the  freight  and  fur- 


II 


128  DELIVERY    TO   CARRIER    AS    APPROPRIATION  (Cll.  2 

nish  the  bran  at  St.  Louis  for  a  specified  price,  without  cost  to  the 
plaintiff,  would  be  some  evidence  tending  to  prove  an  agreement  to 
deliver  the  bran  at  St.  Louis,  and  that  the  sale  was  not  complete  un- 
til the  delivery  was  made.  In  such  case  the  railroad  company  would 
be  deemed  to  be  the  agent  of  the  defendants  and  not  of  the  plaintiff. 

Suit  V.  Woodhall,  113  Mass.  391,  involved  a  contract  for  the  sale 
of  liquors,  and  there  was  testimony  that  the  plaintiff,  who  was  the  sell- 
er, was  to  pay  the  freight  to  the  place  of  destination  and  the  trial 
court  refused  an  instruction  to  the  jury  that,  if  they  found  the  plain- 
tiff was  to  pay  the  freight  and  deliver  the  property  to  defendants  at 
their  place  of  business,  the  sales  were  made  there.  The  refusal  to  so 
instruct  was  held  to  be  error,  and  the  court  remarked  that :  "Delivery 
to  the  carrier  was  a  delivery  to  the  defendants,  if  there  was  no  agree- 
ment to  the  contrary.  *  *  *  But  if  the  parties  agreed  that  the 
goods  were  to  be  delivered  in  Lawrence,  it  would  not  be  a  completed 
sale  until  the  delivery,  and  the  laws  of  this  state  would  apply  to  it." 
In  another  case  the  same  court  held  that  one  who  makes  and  sells 
an  article  to  another,  agreeing  to  deliver  it  at  the  place  of  business  of 
the  buyer,  is  liable  for  any  injury  or  loss  occurring  in  the  transporta- 
tion of  it,  although  at  the  time  of  making  the  contract  for  the  making 
of  the  article  nothing  was  said  about  delivery.  Taylor  v.  Cole,  111 
Mass.  363. 

In  Brewing  Association  v.  Nipp,  6  Kan.  App.  730,  50  Pac.  956,  it 
was  held  that  "ordinarily  a  delivery  of  merchandise  to  the  carrier  is 
a  delivery  to  the  purchaser,  but  when  the  seller  pays  the  freight  the 
carrier  is  his  agent,  and  the  delivery  is  made  at  the  place  of  its  desti- 
nation." In  this  case  the  defendants  were  to  pay  the  freight  to  St. 
Louis,  where  the  bran  was  to  be  delivered  at  a  fixed  price,  without 
charge,  cost,  or  expense  to  the  plaintiff.  The  rule,  as  stated  in  24  A. 
&  E.  Ency.  of  L.  (2d  Ed.)  1050,  is  as  follows :  "If,  by  the  terms 
of  the  contract,  the  seller  is  required  to  send,  or  forward,  or  deliver 
the  goods  to  the  buyer  the  title  and  risk  remain  in  the  seller  until 
the  transportation  is  at  an  end  or  the  goods  are  delivered  in  accord- 
ance with  the  contract,  after  which  time  the  title  is  vested  in  the 
buyer."  See.  also,  Bloyd  v.  Pollock,  27  W.  Va.  75 ;  INIiller  v.  Seaman, 
176  Pa.  291,  35  Atl.  134;  Sheffield  Furnace  Co.  v.  Hull,  101  Ala.  446, 
14  South.  672;  Capehart  v.  Improvement  Co.,  103  Ala.  671,  16  South. 
627,  49  Am.  St.  Rep.  60;  ^lurray  v.  Manufacturing  Co.  (City  Ct.  N. 
Y.)  11  N.  Y.  Supp.  734;  Knapp  Electrical  Works  v.  New  York  In- 
sulated Wire  Co.,  157  111.  456,  42  N.  E.  147;  Brewing  Co.  v.  De 
France,  91  Iowa,  108,  58  N.  W.  1087,  28  L.  R.  A.  386,  51  Am.  St. 
Rep.  329;  Weil  v.  Golden.  141  Mass.  364,  6  N.  E.  229;  Havens  v. 
Grand  Island  Light  &  Fuel  Co..  41  Neb.  153,  59  N.  W.  681:  A. 
Westman  Mercantile  Co.  v.  Park,  2  Colo.  App.  545,  31  Pac.  945; 
2  Benjamin  on  Sales,  §  1040;  Newmark  on  Sales,  §  166. 

There  is  some  confusion  in  the  testimony  as  to  whether  delivery 
was  to  be  made  in  St.  Louis  or  East  St.  Louis,  but  the  statements 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      129 

made  by  the  parties  in  the  later  communications,  and  the  shipment 
of  the  bran  to  East  St.  Louis  by  defendants,  show  that  the  latter 
place  was  understood  by  both  parties  to  be  the  place  of  delivery. 
Taking  the  correspondence  and  the  circumstances  developed  by  the 
testimony,  it  is  manifest  that  defendants  had  not  carried  out  their  part 
of  the  contract  of  sale  until  delivery  was  made  in  East  St.  Louis,  and 
that  the  title  to  the  bran  did  not  pass  until  it  reached  that  place. 

There  was  certainly  evidence  to  take  the  case  to  the  jury,  and  there- 
fore the  judgment  sustaining  the  demurrer  to  plaintiff's  evidence  must 
be  reversed,  and  the  cause  remanded  for  further  proceedings.  All  the 
Justices  concurring.^* 


SECTION  8.— EFFECT  OF  ISSUE  OF  DOCUMENT  OF  TITLE 
AND  OF  NEGOTIATION  OR  TRANSFER  THEREOF 


EVANS  V.  MARTLETT. 

(Court  of  King'.s  Bench,  1697.     1  Ld.  Raym.  271.) 

If  goods  by  bill  of  lading  are  consigned  to  A.,  A.  is  the  owner,  and 
must  bring  the  action  against  the  master  of  the  ship  if  they  are  lost. 
But  if  the  bill  be  special,  to  be  delivered  to  A.  to  the  use  of  B.,  B. 
ought  to  bring  the  action.  But  if  the  bill  be  general  to  A.  and  the 
invoice  only  shews,  that  they  are  upon  the  account  of  B.,  A.  ought 
always  to  bring  the  action,  for  the  property  is  in  him,  and  B.  has  only 
a  trust,  per  totam  curiam.  And  per  Holt,  Chief  Justice,  the  con- 
signee of  a  bill  of  lading  has  such  a  property  as  that  he  may  assign  it 
over.  And  Shower  said,  that  it  had  been  adjudged  so  in  the  Ex- 
chequer. 

WAIT  V.  BAKER. 
(Court  of  Exchequer,  1848.     2  Exch.  1.) 

Trover  for  500  quarters  of  barley.  Pleas,  not  guilty,  and  not  pos- 
sessed;  upon  which  issue  was  joined. 

At  the  trial,  before  Williams,  J.,  at  the  last  Spring  Assizes  for 
Somersetshire,  the  following  facts  appeared :  The  defendant,  a  corn- 
factor  at  Bristol,  had  occasional  dealings  with  a  person  of  the  name 

3*  See.  also.  United  States  v.  Andrews,  207  U.  S.  229,  28  Sup.  Ct.  100,  52 
L.  Ed.  1S5  (1907) ;    JMcXeal  v.  Braun,  53  N.  J.  Law,  617,  23  Atl.  687,  26  Am. 
St.  Rep.  441  (1891),  reported  herein,  post  p.  320. 
WooDW.  Sales — 9 


130      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

of  Lethbridge,  who  was  also  a  corn-factor  at  Plymouth,  and  on  the 
5th  of  December,  1846,  wrote  to  him  the  following  letter: 

"I  hear  that  the  crop  of  barley  in  the  south  of  Hampshire  is  good 
this  year,  and  that  at  Kingsbridge  the  price  is  low,  compared  with  the 
markets  further  eastward.  If  you  are  doing  anything  in  the  article 
this  season,  and  can  make  me  an  offer  of  a  cargo,  I  have  no  doubt  but 
we  may  have  a  transaction.  Let  me  hear  from  you  in  due  course. 
Send  me  sample  in  letter,  describing  weight,"  &c. 

To  which  Lethbridge  wrote  the  following  answer  on  the  9th  of  that 
month : 

"I  beg  to  inform  you  that  I  have  not  yet  commenced  buying  barley 
in  Kingsbridge  market,  farmers  there  standing  out  for  10s.  a  bag. 
After  Saturday's  market  I  will  send  you  a  sample  and  an  offer, 
if  possible." 

On  the  14th  Lethbridge  wrote  the  following  letter  to  the  defendant : 

"I  herewith  hand  you  samples  of  common  and  chevalier  barley  of 
the  neighbourhood  of  Kingsbridge,  and  will  engage  to  sell  you  from 
400  to  500  quarters  f.  o.  b.  barley  at  Kingsbridge,  or  neighbouring 
port,  at  40s.  per  quarter  common,  and  42s.  per  quarter  chevalier,  in 
equal  quantities  for  cash,  on  handing  bills  of  lading,  or  acceptance  at 
two  months'  date,  adding  interest  at  the  rate  of  £5.  per  cent,  per  an- 
num, subject  to  your  reply  by  course  of  post." 

On  the  16th,  the  defendant  returned  the  following  reply: 

"I  beg  to  accept  your  offer  of  250  quarters  of  chevalier  barley,  at 
42s.  per  quarter,  and  250  quarters  common,  at  40s.  per  quarter  f.  o. 
b.,  for  cash  payments,  on  receipt  of  bill  of  lading  and  invoice,  or  ac- 
ceptance at  two  months'  date,  adding  interest  at  the  rate  of  £5.  per 
cent,  per  annum,  subject  to  your  reply  by  course  of  post." 

On  the  ISth  Lethbridge  wrote  the  defendant  as  follows: 

"Your  favour  of  the  16th  came  duly  to  hand,  and  note  by  it  your 
acceptance  of  my  offer  of  barley.  I  suppose  I  am  to  take  up  a  vessel 
at  the  best  possible  freight  I  can  get  her  for.  Please  instruct  me  in 
this,  and  say  if  for  Bristol  or  any  other  port." 

On  the  19th,  the  defendant  wrote  in  answer: 

"I  took  it  for  granted  that  you  would  get  a  vessel  for  the  barley  I 
have  bought  of  you  f.  o.  b.,  and  therefore  did  not  instruct  you  to 
seek  one.  I  trust  that  you  will  be  particular  to  select  a  good  ship, 
and  at  the  lowest  possible  freight,  for  this  port;  and,  above  all,  take 
care  that  the  quality  of  the  barley  is  fully  equal  to  sample.  A  party 
who  will  take  part  of  it,  is  extremely  particular  in  these  matters ;  and 
the  samples  are  sealed  and  held  in  the  custody  of  a  third  party. 
Please  to  advise  when  you  have  taken  up  a  vessel,  with  particulars  of 
the  port  she  loads  in,  so  that  I  may  get  insurance  done  correctly." 

After  some  further  correspondence  respecting  the  amount  of  the 
freight,  Lethbridge  wrote  on  the  23d  to  the  defendant : 

"I   now    send   you   copy  of   charter-party   of   the   Emerald,   which 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      131 

vessel  will  sail   for  the  port  of  loading  to-day  or  to-morrow,  and  I 
will  lose  no  time  in  getting-  her  loaded." 

The  defendant,  by  letter  dated  the  24th,  acknowledged  the  receipt 
of  the  charter-party  (not  under  seal),  which  was  dated  on  the  22d, 
and  was  in  the  name  of  Lethbridge,  to  load  at  Dartmouth,  a  portion 
to  be  filled  up  at  Salcombe,  to  proceed  to  Bristol,  or  any  other  port. 

On  the  28th,  Lethbridge  wrote  to  the  defendant : 

"The  Emerald  will  commence  loading  to-day.  I  hope  to  hand  you 
bill  of  lading  in  the  course  of  the  week." 

And  again  on  the  1st  of  January,  1847: 

'T  hope  to  be  able  to  send  you  invoice  and  bill  of  lading  of  Emer- 
ald on  Tuesday  or  Wednesday." 

And  on  the  6th  of  January  he  wrote  to  the  defendant  as  follows : 

"The  Emerald  is  nearly  loaded;  expect  the  bill  of  lading  to-day  or 
to-morrow.  I  expect  to  be  in  Exeter  on  Friday,  when  it  is  very  like- 
ly I  shall  run  down  and  see  you." 

The  vessel  was  loaded  with  common  and  chevalier  barley ;  and  on 
the  7th  of  January,  Lethbridge  received  from  the  master  the  bill  of 
lading  of  the  cargo,  which  was  therein  expressed  to  be  deliverable 
at  Bristol  to  the  order  of  Lethbridge  or  assigns,  paying  the  freight 
as  per  charter.  On  the  8th,  Lethbridge  called  upon  the  defendant 
at  Bristol  early  in  the  morning,  and  left  at  his  counting-house  the 
invoice  and  an  unindorsed  bill  of  lading.  At  a  subsequent  part  of 
the  day,  Lethbridge  called  again  upon  the  defendant,  when  the  de- 
fendant raised  some  objections  to  the  quality  of  the  cargo,  and  as- 
serted that  it  was  inferior  to  the  samples:  he  also  threatened  he 
would  take  the  cargo,  but  sue  Lethbridge  for  eight  shillings  a  quar- 
ter difference.  After  some  further  dispute  upon  the  matter,  the  de- 
fendant offered  Lethbridge  the  amount  of  the  cargo  in  money,  andi 
said  that  he  accepted  the  cargo.  Lethbridge,  however,  refused  to  I, 
accept  the  money  and  to  indorse  the  bill  of  lading  to  the  defendant ;  * 
but  took  the  bill  of  lading  from  the  counter  and  immediately  pro- 
ceeded to  the  plaintiffs',  who  were  corn-factors,  and  had  a  house  of 
business  in  the  neighbourhood,  and  indorsed  the  bill  of  lading  to 
them,  and  received  an  advance  upon  it.  The  market  at  that  time 
had  risen  considerably.  The  Emerald  arrived  on  the  16th,  and  on 
the  18th  the  defendant  proceeded  on  board  and  claimed  the  cargo  as 
the  owner,  and  unshipped  1240  bushels  of  the  barley,  worth  i422. 
14s. ;  but  the  plaintiffs  coming  on  board  during  the  time  the  cargo 
was  being  unshipped,  presented  the  bill  of  lading  and  obtained  the 
rest  of  the  cargo,  and  paid  the  captain  the  freight. 

The  jury  found  that  the  defendant  did  not  refuse  to  accept  the 
barley  from  Lethbridge ;  that  the  tender  was  unconditional ;  and  that 
Lethbridge  was  not  an  agent  intrusted  with  the  bill  of  lading  by  the 
defendant.  His  Lordship  thereupon  directed  a  verdict  to  be  entered 
for  the  plaintiffs  for  £422.  14s.,  reserving  leave  to  the  defendant  to 
enter  a  verdict  for  him. 


132      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

A  rule  to  show  cause  having  been  obtained, 

Parke,  B.  I  am  of  opinion  that  the  rule  in  the  present  case  ought 
to  be  discharged.  It  is  perfectly  clear  that  the  original  contract  be- 
tween the  parties  was  not  for  a  specific  chattel.  That  contract  would 
be  satisfied  by  the  delivery  of  any  500  quarters  of  corn,  provided  the 
corn  answered  the  character  of  that  which  was  agreed  to  be  deliver- 
ed. By  the  original  contract,  therefore,  no  property  passed;  and 
that  matter  admits  of  no  doubt  whatever.  In  order,  therefore,  to 
deprive  the  original  owner  of  the  property,  it  must  be  shown  in  this 
form  of  action — the  action  being  for  the  recovery  of  the  property — 
that,  at  some  subsequent  time,  the  property  passed.  It  may  be  ad- 
mitted, that  if  goods  are  ordered  by  a  person,  although  they  are  to 
be  selected  by  the  vendor,  and  to  be  delivered  to  a  common  carrier 
to  be  sent  to  the  person  by  whom  they  have  been  ordered,  the  moment 
the  goods,  which  have  been  selected  in  pursuance  of  the  contract, 
are  delivered  to  the  carrier,  the  carrier  becomes  the  agent  of  the  ven- 
dee, and  such  a  delivery  amounts  to  a  delivery  to  the  vendee ;  and  if 
there  is  a  binding  contract  between  the  vendor  and  vendee,  either  by 
note  in  writing,  or  by  part  payment,  or  subsequently  by  part  accept- 
ance, then  there  is  no  doubt  that  the  property  passes  by  such  delivery 
to  the  carrier.  It  is  necessary,  of  course,  that  the  goods  should  agree 
with  the  contract. 

In  this  case,  it  is  said  that  the  delivery  of  the  goods  on  ship-board 
is  equivalent  to  the  delivery  I  have  mentioned,  because  the  ship  was 
engaged  on  the  part  of  Lethbridge  as  agent  for  the  defendant.  But 
assuming  that  it  was  so,  the  delivery  of  the  goods  on  board  the  ship 
was  not  a  delivery  of  them  to  the  defendant,  but  a  delivery  to  the  cap- 
tain of  the  vessel,  to  be  carried  under  a  bill  of  lading,  and  that  bill 
of  lading  indicated  the  person  for  whom  they  were  to  be  carried. 
By  that  bill  of  lading  the  goods  were  to  be  carried  by  the  master  of 
the  vessel  for  and  on  account  of  Lethbridge,  to  be  delivered  to  him 
in  case  the  bill  of  lading  should  not  be  assigned,  and  if  it  should, 
then  to  the  assignee.  The  goods,  therefore,  still  continued  in  the 
possession  of  the  master  of  the  vessel,  not  as  in  the  case  of  a  common 
carrier,  but  as  a  person  carrying  them  on  behalf  of  Lethbridge. 
There  is  no  breach  of  duty  on  the  part  of  Lethbridge,  as  he  stipu- 
lates under  the  original  contract  that  the  price  is  to  be  paid  on  the 
delivery  of  the  bill  of  lading.  It  is  clearly  contemplated  by  the  origi- 
nal contract,  that,  by  the  bill  of  lading,  Lethbridge  should  retain  con- 
trol over  the  property.  It  seems  to  me  to  follow  that  the  delivery 
of  the  500  quarters  to  the  captain,  to  be  delivered  to  Lethbridge,  is 
not  the  same  as  a  delivery  of  500  quarters  to  a  common  carrier  by 
order  of  the  consignee.  The  act  of  delivery,  therefore,  in  the  present 
case,  did  not  pass  the  property.  Then,  what  subsequent  act  do  we 
find  which  had  that  effect? 

It  is  admitted  by  the  learned  counsel  for  the  defendant,  that  the 
property  does  not  pass,  unless  there  is  a  subsequent  appropriation  of 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      133 

the  goods.  The  word  appropriation  may  be  understood  in  different 
senses.  It  may  mean  a  selection  on  the  part  of  the  vendor,  where 
he  has  the  right  to  choose  the  article  which  he  has  to  supply  in  per- 
formance of  his  contract;  and  the  contract  will  show  when  the  word 
is  used  in  that  sense.  Or  the  word  may  mean,  that  both  parties  have 
agreed  that  a  certain  article  shall  be  delivered  in  pursuance  of  the 
contract,  and  yet  the  property  may  not  pass  in  either  case.  For  the 
purpose  of  illustrating  this  position,  suppose  a  carriage  is  ordered  to 
be  built  at  a  coachmaker's,  he  may  make  any  one  he  pleases,  and,  if 
it  agree  with  the  order,  the  party  is  bound  to  accept  it.  Now  sup- 
pose that,  at  some  period  subsequent  to  the  order,  a  further  bargain 
is  entered  into  between  this  party  and  the  coachbuilder,  by  which 
it  is  agreed  that  a  particular  carriage  shall  be  delivered.  It  would 
depend  upon  circumstances  whether  the  property  passes,  or  whether 
merely  the  original  contract  is  altered  from  one  which  would  have 
been  satisfied  by  the  delivery  of  any  carriage  answering  the  terms 
of  the  contract,  into  another  contract  to  supply  the  particular  car- 
riage,— which,  in  the  Roman  law,  was  called  obligatio  certi  corporis, 
where  a  person  is  bound  to  deliver  a  particular  chattel,  but  where  the 
property  does  not  pass,  as  it  never  did  by  the  Roman  law,  until  actual 
delivery ;  although  the  property,  after  the  contract,  remained  at  the 
risk  of  the  vendee,  and  if  lost  without  any  fault  in  the  vendor;  the 
vendee,  and  not  the  vendor,  was  the  sufferer.  The  law  of  England  is 
different :  here,  property  does  not  pass  until  there  is  a  bargain  with 
respect  to  a  specific  article,  and  everything  is  done  which,  according 
to  the  intention  of  the  parties  to  the  bargain,  was  necessary  to  trans- 
fer the  property  in  it.  "Appropriation"  may  also  be  used  in  another 
sense,  and  is  the  one  in  which  Mr.  Butt  uses  it  on  the  present  occa- 
sion ;  viz. :  where  both  parties  agree  upon  the  specific  article  in  which 
the  property  is  to  pass,  and  nothing  remains  to  be  done  in  order  to 
pass  it. 

It  is  contended  in  this  case  that  something  of  that  sort  subsequently 
took  place.  I  must  own  that  I  think  the  delivery  on  board  the  ves- 
sel could  not  be  an  appropriation  in  that  sense  of  the  word.  It  is  an 
appropriation  in  the  first  sense  of  the  word  only;  the  vendor  has 
made  his  election  to  deliver  those  500  quarters  of  corn.  The  next 
question  is,  Vvdiether  the  circumstances  which  occurred  at  Bristol  aft- 
erwards amount  to  an  agreement  by  both  parties  that  the  property  in 
those  500  quarters  should  pass.  I  think  it  is  perfectly  clear  that 
there  is  no  pretence  for  saying  that  Lethbridge  agreed  that  the  prop- 
erty in  that  corn  should  pass.  It  is  clear  that  his  object  was  to  have 
the  contract  repudiated,  and  thereby  to  free  himself  from  all  obli- 
gation to  deliver  the  cargo.  On  the  other  hand,  as  has  been  observed, 
the  defendant  wished  to  obtain  the  cargo,  and  also  to  have  the  power 
of  bringing  an  action  if  the  corn  did  not  agree  with  the  sample.  It 
seems  evident  to  me  that,  at  the  time  when  the  unindorsed  bill  of  lad- 
ing was  left,  there  was  no  agreement  between  the  two  parties  that  that 


134      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

specific  cargo  should  become  the  property  of  the  defendant.  If  that 
is  so,  the  case  remains,  as  to  the  question  of  property,  exactly  as  it 
did  after  the  original  contract.  There  is  a  contract  to  deliver  a  cargo 
on  board,  and  probably  for  an  assignment  of  that  cargo  by  indorsing 
the  bill  of  lading  to  the  defendant;  but  there  was  nothing  which 
amounted  to  an  appropriation,  in  the  sense  of  that  term  which  alone 
would  pass  the  property. 

The  result  is,  that,  in  this  action  of  trover,  the  plaintiffs,  claiming 
under  Lethbridge  by  the  indorsement  of  the  bill  of  lading,  are  entitled 
to  the  property ;  and  then  Mr.  Baker  has  his  remedy  against  him  for 
the  non-fulfilment  of  his  contract,  which  he  certainly  has  not  ful- 
filled. 

Rule  discharged.^* 


MIRABITA  V.  IMPERIAL  OTTOMAN  BANK. 

(Court  of  Appeals,   1878.     L.  R.   3  Excli.  Div.  164.) 

Appeal  from  the  judgment  of  the  Exchequer  Division,  in  favour 
of  the  plaintiff  on  a  special  case  stated  by  an  arbitrator. 

The  plaintiff  is  a  merchant  carrying  on  business  at  Malta  and  Con- 
stantinople. The  defendants  are  a  banking  company  incorporated  by 
a  firman  of  the  Sultan,  and  carrying  on  business  at  Constantinople 
with  agencies  at  London  and  Larnaca. 

On  the  26th  of  June,  1873^  a  contract  was  made  between  the  plain- 
tiff and  Phatsea  &  Pappa,  a  firm  at  Larnaca,  for  certain  umber  to  be 
sold  to  and  shipped  for  the  plaintiff  by  Phatsea  &  Pappa  at  Larnaca. 

On  the  7th  of  July,  1873,  the  plaintiff'  wrote  to  Phatsea  &  Pappa 
stating  that  he  would  send  ships  on  receiving  advice  of  the  quantity 
of  umber  ready  for  shipment,  and  also  that  the  bills  of  lading  must 
state  that  Phatsea  &  Pappa  shipped  the  umber  "by  order  and  on  ac- 
count of  the  plaintiff." 

On  the  26th  of  August,  1873,  Phatsea  &  Pappa  had  600  tons  of  um- 
ber ready  for  delivery  and  shipment  under  the  contract,  and  they  char- 
tered by  order  of  the  plaintiff'  and  for  his  account  a  British  ship,  the 
Princess  of  Wales,  then  lying  at  Alexandria,  to  carry  a  cargo  of  such 

35  A  concurring  opinion  was  delivered  by  Alderson,  B. 

In  Turner  v.  Trustees,  6  Ex.  543  (1S51),  Patteson,  -J.,  said:  "There  is  no 
doubt  that  a  delivery  of  goods  on  board  of  the  purchaser's  own  ship  is  a 
delivery  to  him,  unless  the  vendor  protects  himself  by  special  terms  restrain- 
ing the  effect  of  such  delivery.  In  the  present  case  the  vendors  by  the  terms 
of  the  bill  of  lading  made  the  cotton  deliverable  at  Liveiiiool  to  their  order 
or  assigns ;  and  there  was  not,  therefore,  a  delivery  of  the  cotton  to  the 
purchasers  as  owners,  though  there  was  a  delivery  on  board  their  ship.  The 
vendors  still  reserved  to  tliemseives,  at  the  time  of  delivery  to  the  captain, 
the  jus  disponendi  of  the  goods,  which  he  by  signing  the  bill  of  lading  ac- 
knowledged, and  ^^•ithout  which  it  may  be  assumed  that  the  vendors  would 
not  have  delivered  them  at  all." 


Sec.  8)       ISSUE    OF    DOCUMENT    OP   TITLE TRANSFER    THEREOF  135 

umber  from  Larnaca  to  London.  The  plaintiff  approved  of  the  charter- 
party.  The  Princess  of  Wales  proceeded  to  Larnaca,  where  she  took 
on  board  a  cargo  of  600  tons  of  umber.  About  the  9th  of  October  the 
plaintiff  sent  £150.  to  Phatsea  &  Pappa  for  ship's  advances,  of  which 
sum  £70.  was  paid  to  the  master. 

On  the  9th  of  October  the  master  signed  four  bills  of  lading  for  the 
cargo,  which  stated  the  goods  to  be  shipped  by  Phatsea  &  Pappa,  and 
to  be  delivered  "to  order  or  assigns."  The  bills  of  lading  were  given 
to  Phatsea  &  Pappa. 

On  the  10th  of  October  the  Princess  of  Wales  sailed  from  Larnaca, 
and  on  the  14th  of  October  Phatsea  &  Pappa  informed  the  plaintiff 
by  telegram  that  the  vessel  had  left  with  600  tons  on  the  10th  instant; 
that  they  would  shortly  receive  bills  of  lading  and  draft  at  sixty  days, 
and  requesting  them  to  insure  the  cargo.  The  plaintiff  communicated 
with  his  son,  F.  Mirabita,  trading  in  London  as  Mirabita  Brothers,  and 
through  him  effected  an  insurance  on  the  cargo. 

Phatsea  &  Pappa  drew  a  bill  of  exchange  for  280  Turkish  liras  on 
the  plaintiff,  and  indorsed  and  handed  it  with  the  bills  of  lading  to 
Corkji,  from  whom  they  had  bought  the  umber  which  formed  the  cargo. 
Phatsea  &  Pappa  had  paid  Corkji  for  the  umber,  and  they  handed  them 
the  bill  of  exchange  by  way  of  accommodation,  to  enable  him  to  ob- 
tain an  advance  from  the  defendants  and  in  anticipation  of  future  sup- 
plies of  umber. 

Corkji  discounted  the  bill  of  exchange  at  the  Larnaca  agency  of  the 
defendants'  bank,  and  with  the  bill  of  exchange  handed  them  the  bills 
of  lading,  saying  that  they  were  to  be  sent  to  Constantinople,  and  given 
up  to  the  plaintiff  on  payment  by  him  of  the  bill  of  exchange  at  ma- 
turity. 

The  Larnaca  agency  forwarded  the  bill  of  exchange  and  bills  of 
lading  to  their  bank  at  Constantinople,  Pappa  having  come  to  Con- 
stantinople and  handed  to  the  plaintiff  the  charterparty  and  invoice 
of  the  cargo,  which  stated  that  the  same  was  "shipped  by  order  and 
on  account  of  the  plaintiff."  The  defendants'  bank  at  Constantinople 
presented  the  bill  of  exchange  to  the  plaintiff  for  acceptance,  but  he 
declined  to  accept  without  receiving  the  bills  of  lading.  The  bill  of 
exchange  and  the  bills  of  lading  were  then  returned  to  the  Larnaca 
agency.  The  plaintiff'  afterwards  offered  to  the  defendants'  bank  at 
Constantinople  to  pay  the  bill  of  exchange  before  maturity  on  receipt 
of  the  bills  of  lading,  but  in  consequence  of  the  documents  having  been 
returned  to  Larnaca  this  offer  could  not  be  accepted. 

It  was  then  arranged  between  the  plaintiff  and  Pappa  that  a  new 
bill  of  exchange  for  £254.  lis.  should  be  drawn  by  Phatsea  &  Pappa 
to  the  order  of  Corkji  on  Mirabita  Brothers  in  London  at  two  months' 
date,  which  should  be  substituted  for  the  former  bill  for  280  Turkish 
liras,  and  notice  of  the  agreement  was  given  to  the  defendants'  bank 
at  Constantinople. 


136      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

A  new  bill  of  exchange,  dated  the  9th  of  October,  1873,  was.  in  ac- 
cordance with  the  terms  so  agreed,  drawn  by  Phatsea  &  Pappa  and 
sent  by  them  to  Corkji,  who  handed  it  to  the  Larnaca  agency,  saying 
that  it  was  to  be  sent  with  the  bills  of  lading  to  London,  where  Mira- 
bita  Brothers  would  be  ready  to  accept  and  pay  the  bill  of  exchange  at 
maturity  against  delivery  of  bills  of  lading.  The  Larnaca  agency  ac- 
cordingly gave  up  the  first  bill  of  exchange,  and  on  the  20th  of  No- 
vember, 1873,  forwarded  the  bill  for  £254.  lis.  to  their  agency  in 
London,  and  directed  them  "to  give  up  the  bills  of  lading  on  payment 
of  the  inclosed  bill  of  exchange." 

At  the  time  of  making  the  agreement  with  the  plaintiff  for  the  draw- 
ing of  the  bill  of  exchange  for  £254.  lis.,  as  already  mentioned,  it 
was  doubtful  whether  the  bills  of  lading  would  reach  England  before 
the  arrival  of  the  ship.  Pappa  thereupon  gave  the  plaintiff  a  letter, 
addressed  to  the  master  of  the  Princess  of  Wales,  to  be  used  in  case 
the  ship  should  arrive  in  England  before  the  bills  of  lading,  which  let- 
ter purported  to  authorize  the  master,  if  the  bills  of  lading  had  not 
come  to  hand,  to  deliver  the  cargo  to  the  plaintiff. 

On  the  3d  of  December  the  Princess  of  Wales  reaches  Gravesend, 
and  was  ordered  to  the  IMillwall  Docks  by  F.  ]\lirabita. 

On  the  same  day  the  bill  of  exchange  for  £254.  lis.,  together  with 
the  bills  of  lading,  was  delivered  by  post,  and  in  the  course  of  the  day 
was  left  at  the  office  of  ^Mirabita  Brothers,  with  the  following  note  at- 
tached: "Bill  of  lading  for  Terra  umber,  weighing  600  tons,  per  Prin- 
cess of  \\'ales,  to  be  given  up  against  the  payment  of  attached  draft, 
£254.  lis.,  on  ]\lirabita  Brothers." 

F.  ]\lirabita  returned  the  bill  of  exchange  to  the  defendants'  Lon- 
don agency,  stating  that  he  was  ready  to  pay  the  bill  at  maturity,  but 
he  did  not  then  accept  it. 

On  the  8th  of  December  the  defendants'  London  agency  gave  or- 
ders to  the  ship's  brokers  to  enter  cargo  in  the  name  of  the  bank,  and 
on  the  12th  the  cargo  was  entered  at  the  Custom  House  in  the  de- 
fendants' name;  but  the  defendants  took  no  other  steps  towards  tak- 
ing possession  ol  the  cargo  till  after  the  20th  of  December. 

On  the  12th  of  December  F.  ]\lirabita  called  on  the  defendants,  and 
oft'ered  to  pay  the  bill  and  receive  the  bills  of  lading.  The  defendants' 
manager  refused  to  accept  payment,  alleging  that  they  had  taken  pos- 
session of  the  cargo  and  thereby  had  made  themselves  liable  for 
freight.  They  had  done  nothing  to  take  possession  of  the  cargo  or  to 
make  them  liable  for  freight. 

On  the  18th  of  December  F.  Mirabita  again  oft'ered  to  pay  the  bill 
of  exchange  and  to  give  a  guarantee  for  the  freight.  After  some  fur- 
ther negotiation  the  defendants  landed  the  cargo,  and  after  heavy 
charges  for  demurrage,  landing,  and  other  expenses  had  been  incurred, 
sold  the  cargo  in  bulk,  without  any  authority  from  the  plaintift'  or  F. 
Mirabita,  for  a  sum  which  was  not  sufficient  to  pay  the  amount  of  the 


Sec.  S)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      137 

bill  of  exchange,  freight,  and  expenses.  The  cargo  was  worth  more 
than  the  amount  of  the  bill  of  exchange,  freight,  and  expenses,  and  if 
the  plaintiff  had  obtained  possession  of  it  he  would  have  made  a  profit 
therefrom. 

So  far  as  it  was  a  question  for  the  jury,  the  arbitrator  found  as  a 
fact  that  it  was  the  intention  of  Phatsea  &  Pappa  and  of  the  plaintiff 
that  the  property  in  the  cargo  of  umber  should  pass  to  the  plaintiff 
upon  its  shipment  on  board  the  Princess  of  Wales,  subject  to  a  lien  on 
the  same  for  payment  of  the  price ;  and  their  intention  that  the  prop- 
erty in  the  cargo  should  be  vested  in  the  plaintiff  continued  from  the 
time  of  shipment  until  the  arrival  of  the  ship  in  England. 

The  court  is  to  be  at  liberty  to  draw  inferences  of  fact,  and  to  dis- 
regard the  above  finding,  if  a  jury  would  not  have  been  justified  in 
coming  to  such  a  conclusion  from  the  facts  above  stated.  The  question 
was  whether  the  plaintiff'  is  entitled  to  recover  damages  from  the  de- 
fendants for  their  dealing  with  the  cargo  as  above  mentioned. 

Bramwell,  L.  J.  This  case  has  been  argued  on  the  footing  that  the 
law  of  England  or  a  like  law  is  applicable,  and  we  must  so  deal  with 
it.  We  must  treat  as  the  governing  bargain  between  the  plaintiff'  and 
Phatsea  &  Co.,  the  one  made  at  the  time  it  was  arranged  that  the  pay-' 
ment  should  be  made  by  a  bill  at  two  months,  and  that  the  vendees 
should  not  be  entitled  to  the  600  tons  of  umber,  or  bills  of  lading  of 
them,  until  payment  of  the  bill  of  exchange.  No  question  arises  as 
to  the  defendants'  rights ;  for  it  was  admitted,  and  properly  admitted, 
that  the  defendants  did  wrong  in  refusing  the  amount  of  the  bill,  and 
selling  the  umber.  On  the  other  hand,  there  is  no  contract  between 
the  plaintiff'  and  the  defendants.  So  that  in  the  result  the  case  is  re- 
duced to  this :  When  the  defendants  tortiously  disposed  of  the  umber, 
had  the  plaintiff'  such  a  property  therein,  or  right  thereto,  as  to  entitle 
him  to  maintain  this  action?  It  is  argued  that  he  had  not,  and  the  rea- 
son given  is,  that  as  the  umber  was  not  specific  and  ascertained,  ana 
as  on  shipment  the  shippers  took  a  bill  of  lading  to  order,  and  gav* 
an  interest  in  it  to  Corkji,  who  transferred  it  to  the  defendants,  nip 
property  passed;  and  for  this  a  long  series  of  authorities,  beginning 
with  Wait  v.  Baker,  2  Ex.  1,  and  ending  with  Ogg  v.  Shuter,  1  C.  P. 
D.  47,  is  cited.  It  is  almost  superfluous  to  say  that  by  these  authorities 
I  am  bound,  that  I  pay  them  unlimited  respect,  and  I  may  add  I  do 
so  the  more  readily  as  I  think  the  rule  they  establish  is  a  beneficial 
one.  But  what  is  that  rule?  It  is  somewhat  variously  expressed  as 
being  either  that  the  property  remains  in  the  shipper,  or  that  he  has  a 
jus  disponendi.  Undoubtedly  he  has  a  property  or  power  which  en- 
ables him  to  confer  a  title  on  a  pledgee  or  vendee,  though  in  breach  of 
his  contract  with  the  vendor. 

This  appears  from  Wait  v.  Baker,  2  Ex.  1,  Gabarron  v.  Kreeft,  Law 
Rep.  10  Ex.  274,  and  to  some  extent  from  EHershaw  v.  Magniac,  6  Ex. 
570.    In  the  first  case,  Parke,  B.,  expressly  says  that  the  vendee  Baker 


1 


I 


138      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch  2 

could  under  the  circumstances  maintain  an  action  against  Lethbridge 
for  having  sold  the  barley  to  Wait.  This  property  or  power  exists 
then;  and  therefore  if  the  vendors  of  the  umber  had  sold  it  to  the 
defendants  this  action  would  not  be  maintainable.  But  in  that  case 
the  defendants  would  have  acquired  a  right,  while,  as  I  have  said,  it 
is  admitted  that  no  right  in  them  can  be  relied  on.  I  think  it  is  not 
necessary  to  inquire  whether  what  the  shipper  possesses  is  a  property, 
strictly  so  called,  in  the  goods,  or  a  jus  disponendi,  because  I  think, 
whichever  it  is,  the  result  must  be  the  same,  for  the  following  reasons : 
That  the  vendee  has  an  interest  in  the  specific  goods  as  soon  as  they 
are  shipped  is  plain.  By  the  contract  they  are  at  his  risk.  If  lost  or 
damaged,  he  must  bear  the  loss.  If  specially  good,  and  above  the  aver- 
age quality  which  the  seller  was  bound  to  deliver,  the  benefit  is  the 
vendee's.  If  he  pays  the  price,  and  the  vendor  receives  it,  not  having 
transferred  the  property,  nor  created  any  right  over  it  in  another,  the 
property  vests.  It  is  found  in  this  case  that  as  far  as  intention  went 
the  property  was  to  be  in  the  plaintifi:  on  shipment.  If  the  plaintift  had 
paid,  and  the  defendants  had  accepted  the  amount  of  the  bill  of  ex- 
change, it  cannot  be  doubted  that  the  property  would  have  vested  in 
the  plaintifi:.  Why?  Not  by  any  delivery.  None  might  have  been 
made;  the  defendants  might  have  wrongfully  withheld  the  bills  of  lad- 
ing. The  property  would  have  vested  by  virtue  of  the  original  con- 
tract of  sale.  It  follows  that  it  vested  on  tender  of  the  price,  and  that 
whether  the  vendor's  right  was  a  right  of  property  or  a  jus  disponendi ; 
for  whichever  it  was  it  was  their  intention  that  it  should  cease  on  the 
plaintiff's  paying  the  price,  and  therefore  it  would  cease  unless  mean- 
while some  title  had  been  conferred  on  a  third  person  to  something 
more  than  the  price.  This,  though  wrongful  as  regards  the  plaintiff, 
would  have  been  valid.    But  no  such  title  exists  here. 

There  is  nothing  in  the  authorities  inconsistent  with  this.  The  only 
case  that  may  be  thought  to  seem  so  is  Wait  v.  Baker,  2  Ex.  1,  where, 
though  the  vendee  tendered  the  price,  he  was  held  to  have  acquired  no 
property.  But  it  is  manifest  that  in  that  case  the  vendor  originally 
took  the  bill  of  lading  to  order,  and  kept  it  in  his  possession,  to  deal 
with  as  he  thought  fit,  and  never  intended  that  the  property  should  pass 
until  he  handed  the  bill  of  lading  to  the  vendee  on  such  terms  as  he 
chose  to  exact.  Parke,  B.,  says :  "There  is  no  pretense  for  saying 
that  Lethbridge  agreed  that  the  property  should  pass."  "There  was 
nothing  that  amounted  to  an  appropriation,  in  the  sense  of  that  term, 
which  alone  would  pass  the  property."  "There  was  no  agreement  be- 
tween the  two  parties  that  that  specific  cargo  should  become  the  prop- 
erty of  the  defendant,"  the  vendee.  Here  all  the  evidence  shews  that 
there  was  such  an  agreement.  The  arbitrator  says  it  existed  in  fact  at 
the  time  of  shipment,  but  the  subsequent  conduct  of  both  parties  shews 
it.  What  seems  decisive  is  this  :  the  plaintiff  must  have  a  right  against 
some  one ;  has  he  any  against  Phatsea  ?    Now  Phatsea  has  done  noth- 


Sec.  8)       ISSUE   OF    DOCUMENT    OF   TITLE TRANSFER    THEREOF  139 

ing  that  he  had  no  right  to  do,  and  he  has  done  everything  he  was 
bound  to  do,  treating  the  altered  agreement  as  governing.  No  action 
therefore  would  lie  against  him.  It  must  then  be  the  defendants  who 
are  in  the  wrong.  I  think  they  are,  that  the  property  was  to  pass  onl 
payment,  and  consequently  on  tender  of  payment,  of  the  bill  of  ex-l 
change ;  that  the  bill  of  lading  was  handed  the  Larnaca  Bank  to  be  de-' 
livered  to  the  plaintifif  on  payment  of  the  bill  of  exchange ;  that  there- 
fore the  plaintiff  can  maintain  this  action,  and  the  judgment  should  be 
affirmed. 

I  would  add  that  I  agree  with  the  reasoning  of  my  Brother  Cleasby 
in  the  Court  below;  and  I  would  further  remark  that  I  believe  this  is 
a  question  which  would  not  have  been  open  to  the  slightest  doubt  if 
the  action  had  been  brought  after  the  coming  into  operation  of  the 
Judicature  Acts.  Cotton,  L.  J.,  has  favoured  me  with  a  perusal  of 
his  judgment,  and  I  entirely  agree  with  it. 

Cotton,  L.  J.  In  this  case  the  vendors  on  shipping  the  goods,  the 
subject  of  the  contract,  took  a  bill  of  lading,  requiring  the  delivery 
of  the  goods  to  be  to  their  order,  and  dealt  with  that  bill  of  lading  in 
this  way  in  order  to  secure  payment  of  the  bill  of  exchange  which 
they  then  drew  on  the  plaintiff.  The  bill  of  exchange  was  discounted 
with  the  defendants,  and  the  bill  of  lading  was  transferred  to  them 
as  security  for  the  payment  of  the  bill  of  exchange;  this  bill  of  ex- 
change having  been  refused  acceptance,  a  second  bill  of  exchange  was 
drawn  and  given  in  lieu  of  the  first  bill,  upon  the  terms  of  the  delivery 
of  the  bill  of  lading  to  the  plaintiff  upon  payment  of  the  second  bill  of 
exchange,  and  in  so  dealing  with  the  bill  of  exchange  the  vendors  in- 
tended that  upon  payment,  the  plaintiff',  the  purchaser,  should  obtain 
the  goods,  and  they  agreed,  and,  as  far  as  they  could,  transferred  to 
the  purchaser  their  right  to  insist  that  on  payment  of  the  bill  of  ex- 
change the -bill  of  lading  should  be  handed,  over. 

I  mention  those  facts  for  the  purpose  of  adding  this:  that  the  action 
was  instituted  before  the  passing  of  the  Judicature  Acts,  and  therefore 
it  is  simply  to  be  dealt  with  as  a  legal  question ;  and  we  cannot  in- 
quire here  how  far  the  plaintiff  has  the  right  in  equity  to  insist  that  he 
occupies  the  same  position  as  the  vendors,  and  to  insist  that  as  against 
the  pledgee  of  the  bill  of  lading  the  plaintiff,  as  transferee  of  the  right, 
has  a  good  equitable  title,  even  if  he  has  not  a  legal  title.  In  fact  in 
the  present  case  it  simply  turns  on  this  question,  whether  the  property 
in  the  goods  in  question  has,  under  the  circumstances,  passed  to  the 
plaintiff. 

Now  I  quite  agree  with  the  judgment  of  Bramwell,  L.  J.,  but  as 
several  cases  were  cited  in  the  argument  which  it  was  contended  were 
adverse  to  the  ground  of  our  decision,  I  think  it  better  to  state  what  I 
consider  to  be  the  principle  of  those  decisions,  and  to  point  out  how 
far  that  principle  is  applicable  to  such  cases  as  this :  Under  a  contract 
for  sale  of  chattels  not  specific  the  property  does  not  pass  to  the  pur- 


140      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Cll.  2 

I  chaser  unless  there  is  afterwards  an  appropriation  of  the  specific  chat- 
tels to  pass  under  the  contract,  that  is,  unless  both  parties  agree  as  to 
the  specific  chattels  in  which  the  property  is  to  pass,  and  nothing  le- 
mains  to  be  done  in  order  to  pass  it.  In  the  case  of  such  a  contract 
the  delivery  by  the  vendor  to  a  common  carrier,  or  (unless  the  efifect 
of  the  shipment  is  restricted  by  the  terms  of  the  bill  of  lading)  shipment 
on  board  a  ship  of,  or  chartered  for,  the  purchaser,  is  an  appropriation 
sufficient  to  pass  the  property.  If,  however,  the  vendor,  when  shipping 
the  articles  which  he  intends  to  deliver  under  the  contract,  takes  the  bill 
of  lading  to  his  own  order,  and  does  so  not  as  agent  or  on  behalf  of 
the  purchaser,  but  on  his  own  behalf,  it  is  held  that  he  thereby  reserves 

I  to  himself  a  power  of  disposing  of  the  property,  and  that  consequently 
there  is  no  final  appropriation,  and  the  property  does  not  on  shipment 
pass  to  the  purchasers.  When  the  vendor  on  shipment  takes  the  bill  of 
lading  to  his  own  order,  he  has  the  power  of  absolutely  disposing  of 
the  cargo,  and  may  prevent  the  purchaser  from  ever  asserting  any 
right  of  property  therein;  and  accordingly  in  Wait  v.  Baker,  2  Ex.  1, 
Ellershaw  v.  Magniac,  6  Ex.  570,  and  Gabarron  v.  Kreeft,  Law  Rep. 
10  Ex.  274,  (in  each  of  which  cases  the  vendors  had  dealt  with  the  bills 
of  lading  for  their  own  benefit),  the  decisions  were  that  the  purchaser 
had  no  property  in  the  goods,  though  he  had  offered  to  accept  bills  for 
or  had  paid  the  price. 

So,  if  the  vendor  deals  with  or  claims  to  retain  the  bill  of  lading 
in  order  to  secure  the  contract  price,  as  when  he  sends  forward  the 
bill  of  lading  with  a  bill  of  exchange  attached,  with  directions  that 
the  bill  of  lading  is  not  to  be  delivered  to  the  purchaser  till  ac- 
ceptance or  payment  of  the  bill  of  exchange,  the  appropriation  is 
not  absolute,  but,  until  acceptance  of  the  draft,  or  payment,  or  ten- 
der of  the  price,  is  conditional  only,  and  until  such  acceptance,  or 
payment,  or  tender,  the  property  in  the  goods  does  not  pass  to  the 
purchaser;  and  so  it  was  decided  in  Turner  v.  Trustees  of  Liv- 
erpool Docks,  6  Ex.  543,  20  L.  J.  (Ex.)  393;  Shepherd  v.  Har- 
rison, Law  Rep.  4  Q.  B.  196;  Ogg  v.  Shuter,  1  C.  P.  D.  47.  But  if 
the  bill  of  lading  has  been  dealt  with  only  to  secure  the  contract  price, 
there  is  neither  principle  nor  authority  for  holding  that  in  such  a  case 
the  goods  shipped  for  the  purpose  of  completing  the  contract  do  not 
on  payment  or  tender  by  the  purchaser  of  the  contract  price  vest  in 
him.  When  this  occurs  there  is  a  performance  of  the  condition  sub- 
ject to  which  the  appropriation  was  made,  and  everything  which,  ac- 
cording to  the  intention  of  the  parties,  is  necessary  to  transfer  the  prop- 
erty is  done;  and  in  my  opinion,  under  such  circumstances,  the  prop- 
erty does  on  payment  or  tender  of  the  price  pass  to  the  purchaser. 

Apply  these  principles  to  the  present  case.  Pappa  did  not  attempt 
to  make  use  of  the  power  of  disposition  which  he  had  under  the  bill 
of  lading  for  the  purpose  of  entirely  withdrawing  the  cargo  from  the 
contract.    He  dealt  with  it  only  for  the  purpose  of  securing  payment  of 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      141 

the  price.  It  is  expressly  stated  in  the  special  case  that  Mr.  Corkji,  who 
acted  for  Pappa,  discounted  the  said  bill  of  exchange  at  the  agency  of 
the  defendants'  bank,  and  with  the  bill  of  exchange  handed  them  the 
bills  of  lading,  saying  that  they  were  to  be  sent  to  Constantinople  and 
given  up  to  the  plaintiff  on  pa3'ment  of  the  bill  of  exchange  at  maturity. 

Under  these  circumstances  there  was  an  appropriation  by  the  vendors 
of  the  cargo  subject  only  to  payment  of  the  price.  This  was  tendered, 
and  as  it  is  conceded  that  the  defendants  were  wrong  in  claiming  any- 
thing more,  the  plaintiff,  the  purchaser,  had  done  or  oft'ered  to  do  all 
that  was  incumbent  on  him  to  make  the  appropriation  absolute,  and 
the  property  vested  in  him. 

Bke;tt,  L.  J.,  concurred  that  the  judgment  of  the  Exchequer  Divi- 
sion must  be  affirmed. 

Judgment  affirmed. 


LOVELL  V.  ISIDORE  NEWMAN  &  SON. 

(Circuit  Court  of  Appeals  of  tlio  Uuited   States,  1912.     192  Fed.  75.3,  113  C. 

C.  A.  39.) 

Action  by  William  S.  Lovell,  as  trustee  in  bankruptcy  of  Knight, 
Yancey  &  Co.,  against  Isidore  Newman  &  Son  and  others,  on  a  bond 
conditioned  to  pay  the  cash  value  of  a  certain  cargo  of  cotton  to  the 
receivers  or  trustee  of  Knight,  Yancey  &  Co.,  if  it  should  be  adjudged 
that  they  had  title  to  the  same.  Certain  Italian  spinners,  who  claimed 
the  cargo  as  purchasers  from  Knight,  Yancey  &  Co.,  were  permitted  to 
intervene.^  *^ 

Maxey,  District  Judge.  *  *  *  Xhe  transactions  eventuating  in 
the  present  litigation  originated  in  contracts  made  December,  1909,  and 
January,  1910.  by  the  bankrupts,  through  their  broker,  Gavirati,  with 
the  spinners  for  the  purchase  and  delivery  of  certain  cotton.  The 
validity  of  the  contracts  is  not  questioned.  They  called  for  the  ship- 
ment by  the  bankrupts  of  specilied  quantities  of  cotton  of  specified 
grades  under  through  bills  of  lading  to  Genoa.  The  cotton  was  to 
be  shipped  in  January  and  February,  1910.  Insurance  and  freight 
were  to  be  paid  by  the  bankrupts,  and  the  spinners  were  to  make 
payment  of  the  cotton  by  means  of  drafts  to  be  drawn  on  certain 
designated  bankers.  No  cotton  was  shipped  by  the  bankrupts  dur- 
ing the  months  of  January  and  February.  They,  however,  drew 
drafts  on  the  bankers  designated  in  the  contracts  for  the  price  of 
the  cotton  and  attached  certificates  of  insurance,  invoices,  and  forged 
bills  of  lading  purporting  to  have  been  issued  by  the  railroad  com- 
pany. 

By  referring  to  the  statement  of  the  case,  it  will  be  seen  that  these 
bills  of  lading,  concocted  by  John  W.  Knight  as  the  managing  part- 

3  6  The  statement  of  facts  is  abridged  aud  part  of  the  opinion  is  omitted. 


142  ISSUE   OF    DOCUMENT    OF   TITLE- — TRANSFER    THEREOF         (Ch.  2 

ner  of  the  firm,  were  issued  pursuant  to  the  directions  of  the  con- 
tract, and  that  the  bills,  the  drafts,  the  certificates  of  insurance,  and 
the  invoices  identified  the  cotton  purporting  to  have  been  shipped  by 
certain  marks  composed  of  four  letters.  For  example,  one  set  of 
documents,  including  the  draft,  referred  to  cotton  marked  "TSST," 
and  so  with  the  others,  each  set  denoting  a  like  combination,  but  with 
dififerent  letters.  It  will  be  further  noticed  that  there  was  a  sub- 
stantial correspondence  in  all  of  these  documents,  thus  clearly  show- 
ing that  it  was  the  deliberate  purpose  of  the  bankrupts  to  obtain  mon- 
ey from  the  spinners  by  the  fraudulent  artifice  thus  devised.  And 
this  purpose  was  fully  accomplished.  The  drafts  were  duly  paid  by 
the  bankers  of  the  spinners  and  the  forged  bills  of  lading  were  sur- 
rendered to  the  latter.  The  result  was  that  the  bankrupts  obtained 
the  money,  and  the  spinners  got  the  spurious  bills  of  lading.  In  so 
far  as  the  spinners  and  their  bankers  were  concerned  in  the  transac- 
tion, their  conduct  was  perfectly  honest  and  straightforward.  Rely- 
ing upon  the  good  faith  of  the  bankrupts,  they  acted  upon  the  pre- 
sumption that  the  bills  of  lading  were  genuine.  They  were  ignorant 
of  the  fraud  perpetrated  upon  them,  and  paid  the  drafts  in  the  as- 
surance that  the  cotton  had  been  shipped  in  compliance  with  the  terms 
of  their  contracts  and  as  indicated  in  the  bills  of  lading. 

What  then  occurred?  After  the  bankrupts  had  received  pay  for 
the  cotton  supposed  by  the  shippers  to  be  en  route  to  its  destination, 
the  bankrupts  in  March  and  April — from  March  16th  to  April  11th — 
a  few  weeks  only  after  it  should  have  been  shipped  under  their  con- 
tracts, made  shipment  of  1,400  bales  via  the  Cotoniera  Steamship 
Line  to  Genoa.  For  these  shipments  genuine  through  bills  of  lading 
were  obtained  from  the  railroad  company  at  Decatur  and  Selma, 
Ala.,  and  the  cotton  was  transported  to  New  Orleans,  and  there  de- 
livered to  and  put  aboard  the  steamship  Ingelfingen  of  the  Cotoniera 
Line.  The  cotton  was  delivered  to  the  steamship  and  taken  aboard 
prior  to  the  date  of  the  restraining  order,  to  wit.  May  3,  1910.  In 
this  connection  a  comparison  of  the  forged  with  the  genuine  bills  of 
lading  will  prove  instructive.  In  both  the  cotton  was  to  be  shipped 
by  the  Cotoniera  Line  to  Genoa.  In  both  the  marks  of  the  cotton 
were  identical.  In  both  Gavirati,  the  broker,  was  to  be  notified.  In 
both  the  same  weights  precisely  were  inserted.  In  both  the  forms 
used  by  the  railroad  company  were  similar,  and  the  genuine  bills 
were  issued  by  the  same  agent  whose  name  was  used  in  the  forged 
bills.  It  is  evident  there  was  a  purpose  to  conform  the  genuine  bills 
to  those  that  were  forged.  What  were  the  purpose  and  intent  actu- 
ating the  bankrupts?  They  knew  that  the  forged  bills  had  gone  for- 
ward and  were  presumbably  in  the  possession  of  the  spinners,  since 
the  drafts  had  been  paid  and  they  had  received  the  money.  They 
knew  that  the  genuine  bills,  so  carefully  designed  to  correspond  with 
those  that  were  spurious,  would  not  be  necessary  to  insure  the   de- 


Sec.  8)       ISSUE   OF    DOCUMEN  £    OP   TITLE TRANSFER    THEREOF  143^ 

livery  of  the  cotton  to  the  spinners.  And  with  this  knowledge  their 
plain  purpose  was  to  suppress  the  genuine  bills  and  permit  the  cotton 
to  proceed  to  its  destination  under  the  forged  bills,  and  thus  prevent 
exposure  of  the  fraud  with  consequences  disastrous  to  themselves. 
In  view  of  these  facts  who  were  the  real  owners  of  the  cotton? 

It  is  insisted  by  the  trustee  that,  since  the  genuine  bills  of  lading 
were  made  to  the  order  of  the  bankrupts,  they  retained  the  title  to! 
and  the  jus  disponendi  of  the  cotton.  It  is  true  that  the  bills  were 
executed  as  claimed,  and  that  they  were  indorsed  in  blank  and  deliv 
ered  to  the  trustee  on  May  26th.  But  on  April  16th  the  bills  were 
all  in  possession  of  the  bankrupts  and  unindorsed.  The  cotton  had 
then,  at  the  date  last  mentioned,  been  delivered  to  the  railroad  com- 
pany under  through  bills  of  lading  for  transportation  to  Genoa.  At 
that  date  in  whom  did  the  title  reside?  The  trustee  answers  in  the 
bankrupts  by  virtue  of  the  bills  of  lading  executed  to  their  order  and 
remaining  in  their  possession.  But  we  have  seen  that,  while  a  bill 
of  lading  is  strong  evidence  of  an  intention  to  reserve  to  the  shipper 
the  jus  disponendi  of  the  property,  yet  such  intention  is  always  open 
to  explanation,  although  the  bill  may  have  passed  into  the  hands  of 
an  innocent  purchaser  for  value.  In  the  present  case  there  are  no 
intervening  rights  of  third  parties ;  the  contest  being  between  the 
bankrupts  and  their  trustee  on  the  one  hand  and  the  spinners  on  the 
other.  In  the  absence  of  the  bankruptcy  of  the  parties,  what  would 
have  been  the  attitude  of  the  bankrupts?  Could  they  have  recovered 
the  cotton  or  its  value  from  the  spinners?  They  had  once  been  paid 
full  value,  and  it  would  be  shocking  to  the  sense  of  justice  to  suppose 
that  they  could  have  enforced  a  second  payment.  If  parties  by  their 
own  fraudulent  conduct  may  be  estopped,  the  application  of  the  doc- 
trine would  effectually  cut  them  oft'  from  asserting  that  they  had  not 
delivered  the  cotton  in  pursuance  of  their  solemn  contracts. 

But  we  may  go  further.  We  are  clearly  of  the  opinion  that,  under 
the  facts  of  this  case,  the  delivery  of  the  cotton  to  the  carrier  vested 
the  ownership  in  the  spinners,  upon  the  theory  that  it  \va.s  the  inten- 
tion of  the  bankrupts  to  appropriate  it  to  the  contracts.  The  court 
below  properly  so  held  in  the  following  finding:  "That  by  marking 
and  shipping  the  cotton,  as  above  set  out.  Knight,  Yancey  &  Co. 
intended  to  appropriate  and  did  appropriate  it  to  the  fulfillment  of 
the  eight  contracts  of  sale,  and  that  by  delivefing  it  to  the  carrier 
they  perfected  delivery  to  the  buyers  under  the  terms  of  the  con- 
tracts." 

The  case  of  The  Idaho,  93  U.  S.  575,  23  L.  Ed.  978,  upon  this 
question,  is  pertinent  and  material.  To  a  proper  understanding  of 
the  case  it  becomes  necessary  to  insert  the  following  lengthy  excerpt 
from  the  opinion.  At  pages  581-583  of  93  U.  S.  (23  L.  Ed.  978), 
it  is  said  by  the  court :  "Recurring,  then,  to  the  inquiry  whether  Por- 
ter &  Co.,  to  whose  order  the  steamer  delivered  the  165  bales  of  cot- 


{ 


\ 


144  ISSUE   OF    DOCUMENT    OF   TITLE TRANSFER   THEREOF         (Ch.  2 

ton,  were  the  true  owners  of  the  cotton,  a  brief  statement  of  the  evi- 
dence on  which  their  title  rests  is  necessary.  It  originated  as  follows . 
On  the  1st  of  April,  1869,  one  J.  C.  Forbes  obtained  from  the  mas- 
ter of  the  brig  Colson,  then  lying  at  New  Orleans,  a  bill  of  lading 
for  139  bales  of  cotton,  described  by  specified  marks.  The  bill  was 
indorsed,  and  forwarded  by  Forbes  to  Porter  &  Co.,  and  drafts 
against  it  to  a  large  amount  were  drawn  upon  them,  which  they  ac- 
cepted, credited,  and  paid  on  or  before  the  7th  of  the  month.  In 
fact,  however,  when  the  bill  of  lading  was  given,  no  such  cotton  had 
been  received  by  the; brig;  but  on  the  5th  of  April  the  agent  of  Forbes 
bought  140  bales,  then  at  the  shipper's  press,  and  directed  them  to  be 
sent  to  the  Colson,  marked  substantially  as  described  in  the  bill  of 
lading.  These  bales  were  accordingly  delivered  from  the  press  to 
the  brig  on  the  8th  of  /Vpril,  and  the  first  and  second  mate  receipted 
for  them.  They  were  not  actually  taken  on  board,  but  they  were 
deposited  on  the  pier,  at  the  usual  and  ordinary  place  for  the  receipt 
of  freight  by  the  Colson,  and  an  additional  bill  of  lading  for  one  bale 
only  was  taken  by  Forbes,  and  by  him  indorsed  and  transmitted  to 
Porter  &  Co.,  together  with  an  invoice  of  the  140  bales  corresponding 
with  the  bills  of  lading.  The  marks  and  numbers  on  the  bales  were 
the  same  as  those  mentioned  in  the  bills  of  lading,  excepting  only 
that  35  were  marked  'L'  instead  of  36,  and  16  marked  'S'  instead  of 
15.  There  was  also  a  small  difiference  in  the  aggregate  weight.  That 
the  cotton  thus  delivered  to  the  Colson  was  intended  to  fill  the  bills 
of  lading,  one  of  which  had  been  previously  given,  is  incontrovertible. 
They  were  so  intended  by  the  shipper.  If  not,  why  were  they  thus 
marked?  And  why  was  a  bill  of  lading  taken  for  1  bale  only,  instead 
of  140;  and  why  was  the  invoice  of  the  whole  number  sent?  Such, 
also,  was  plainly  the  understanding  of  the  ship.  The  receipts  of 
the  mates,  and  the  fact  that  the  master  gave  a  bill  of  lading  for  1 
bale  marked  'S,'  where  there  were  16  bales  thus  marked,  leave  this 
beyond  a  reasonable  doubt.  What  then?  Why,  the  140  bales  thus 
shipped  became  from  the  moment  of  shipment  the  property  of  Por- 
ter &  Co.,  to  whom  the  bills  of  lading  were  indorsed.  It  is  not  only 
the  utterance  of  common  honesty,  but  the  declaration  of  judicial 
tribunals,  that  a  delivery  of  goods  to  a  ship  corresponding  in  sub- 
stance with  a  bill  of  lading  given  previously,  if  intended  and  received 
to  meet  the  bill  of  lading,  makes  the  bill  operative  from  the  time  of 
such  delivery.  At  that  instant  it  becomes  evidence  of  the  ownership 
of  the  goods.  Thus  in  Rowley  v.  Bigelow,  12  Pick.  [Mass.]  307  [23 
Am.  Dec.  607],  it  is  said  a  bill  of  lading  operates  by  way  of  estop- 
pel against  the  master,  arid  also  against  the  shipper  and  indorser. 
'The  bill  acknowledges  the  goods  to  be  on  board  before  the  bill  of 
lading  is  signed.  But  if,  through  inadvertence  or  otherwise,  the  bill 
of  lading  is  signed  before  the  goods  are  on  board,  upon  the  faith 
and  assurance  that  they  are  at  hand,  as  if  they  are  received  on  the 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      145 

wharf  ready  to  be  shipped,  or  in  the  shipper's  own  warehouse, 
*  *  *  and  afterwards  they  are  placed  on  board,  as  and  for  the 
goods  embraced  in  the  bill  of  lading,  as  against  the  shipper  and  mas- 
ter the  bill  will  operate  on  those  goods  by  way  of  relation  and  estop- 
pel.' Such  is  also  the  doctrine  asserted  in  Halliday  v.  Hamilton,  11 
Wall.  565  [20  L.  Ed.  214],  and  it  is  in  harmony  with  the  general 
rules  that  regulate  the  transfer  of  personal  property.  We  do  not  say 
that  a  title  to  personal  property  may  not  be  created  between  the  is- 
sue of  a  bill  of  lading  therefor  and  its  delivery  to  the  ship,  which 
will  prevail,  over  the  master's  bill,  but,  in  the  absence  of  any  such 
intervening  right,  a  bill  of  lading  does  cover  goods  subsequently  de- 
livered and  received  to  fill  it,  and  will  represent  the  ownership  of  the 
goods.  The  cotton  delivered  on  the  8th  of  April  on  the  pier  for 
the  Colson,  and  received  by  the  mates  of  the  brig,  became,  therefore, 
at  the  instant  of  its  delivery,  the  property  of  Porter  &  Co.,  who  were 
then  the  indorsees  of  the  bills  of  lading.  Its  subsequent  removal 
by  Forbes  to  the  Ladonia,  either  with  or  without  the  consent  of  the 
brig's  officers,  could  not  divert  that  ownership." 

As  in  the  Idaho  Case,  the  delivery  of  the  cotton  to  the  Colson  was 
intended  to  fill  the  bills  of  lading,  although  the  delivery  was  made 
several  days  subsequent  to  the  execution  of  the  bills,  so  in  the  pres- 
ent case,  where  all  the  facts  and  circumstances  are  considered,  the 
conclusion  is  evident  that  the  bankrupts  intended  by  the  delivery  of 
the  cotton  to  the  carrier  to  appropriate  it  to  the  contracts  of  the  spin- 
ners. Indeed,  any  other  conclusion  would  not  only  be  inconsistent 
with  the  facts,  but  repugnant  to  the  principles  of  common  honesty 
and  fair  dealing  as  between  merchant  and  merchant. 

But  it  i^,  contended  by  the  trustee  that  the  delivery  was  ineffective 
to  pass  title  for  the  reason,  among  others,  that  there  was  no  proof 
of  assent  on  the  part  of  the  spinners.  The  contention  is  answered 
by  the  court  in  the  case  of  Grove  v.  Brien,  8  How.  439  (12  L.  Ed. 
1142),  where  it  is  said:  "In  the  absence  of  all  evidence  to  the  con- 
trary in  case  of  an  absolute  assignment  of  property  by  a  debtor  to 
his  creditors  for  the  purpose  of  securing  a  pre-existing  debt,  an  as- 
sent will  be  presumed  on  account  of  the  benefit  that  he  is  to  derive 
from  it.  This  principle  was  recognized  and  applied  by  this  court  in 
the  case  of  Tompkins  v.  Wheeler,  16  Pet.  106,  10  L.  Ed.  903,  and  had 
been  before  in  Brooks  v.  Marbury,  11  Wlieat.  96,  6  L.  Ed.  423.  No 
expression  of  assent,  the  court  say,  of  the  person  for  whose  benefit 
the  assignment  is  made,  is  necessary  to  the  vesting  the  title,  as  the 
creditor  is  rarely  unwilling  to  receive  his  debt  from  any  hand  that 
will  pay  him." 

There  is  nothing  in  the  present  record  rebutting  or  tending  to  re- 
but such  presumption  in  favor  of  the  spinners.  On  the  contrary, 
it  appears  that,  when  the  temporary  injunction  was  issued  at  the 
instance  of  the  receivers,  the  steamship  line  promptly  gave  bond,  by 
WooDw.  Sales — 10 


146      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

virtue  of  which  the  cotton  was  immediately  transported  under  the 
bills  of  lading  to  Genoa  for  delivery  to  the  spinners.  In  addition, 
upon  the  institution  of  the  present  suit  by  the  trustee,  the  spinners 
filed  their  petition  of  intervention,  in  which  it  is  insisted  that  they 
are  the  owners  of  the  cotton,  and  were  such  owners  prior  to  the 
date  of  the  restraining  order.  In  view  of  the  circumstances  of  the 
case,  the  presumption  must  obtain  that  the  spinners  assented  to  the 
delivery  of  the  cotton.  If  in  such  case  assent  of  the  spinners  to  the 
delivery  of  the  cotton  would  be  presumed,  they  would  be  equally 
presumed  to  have  waived  the  time  of  the  delivery  as  well  as  the  fail- 
ure of  the  bankrupts  to  have  it  insured.  Certainly  the  bankrupts 
would  not  be  in  a  position  to  deny  there  was  a  waiver,  and  in  that 
respect  the  trustee  can  claim  no  right  superior  to  that  of  the  bank- 
rupts themselves.  While  creditors  are  entitled  to  the  protecting  shield 
of  the  law,  the  rights  of  innocent  purchasers  are  guarded  and  pro- 
tected with  equal  jealousy. 

Under  some  circumstances,  the  bankruptcy  statutes  clothe  the  trus- 
tee with  power  to  set  aside  conveyances,  good  as  between  the  bank- 
rupt and  a  purchaser.  But  ordinarily,  in  the  absence  of  fraud,  or 
of  a  state  statute  declaring  the  conveyance  void,  or  unless  it  con- 
travenes some  provision  of  the  bankruptcy  acts,  a  conveyance,  based 
upon  a  valuable  consideration  and  good  as  between  the  parties,  will 
be  permitted  to  stand.  As  to  such  a  conveyance,  and  the  spinners 
here  stand  in  a  similar  category,  the  trustee  occupies  no  better  posi- 
tion than  the  bankrupt.  He  stands  simply  in  the  bankrupt's  shoes. 
The  principle  has  been  clearly  announced  by  the  Supreme  Court  in 
the  following  cases:  Thompson  v.  Fairbanks,  196  U.  S.  516,  25  Sup. 
Ct.  306,  49  L.  Ed.  577 ;  Hewit  v.  Berlin  Machine  Works,  194  U.  S. 
296,  24  Sup.  Ct.  690,  48  L.  Ed.  986 ;  Zartman  v.  First  National  Bank, 
216  U.  S.  134,  30  Sup.  Ct.  368,  54  h.  Ed.  418;  York  Manufacturing 
Co.  V.  Cassell,  201  U.  S.  344,  26  Sup.  Ct.  481,  50  L.  Ed.  782.     *     *     * 

The  cotton  in  question  prior  to  the  date  that  Knight,  Yancey  &  Co. 
were  adjudged  bankrupts  was  the  property  of  the  spinners,  and  hence 
it  could  not  have  been  lawfully  transferred  by  the  bankrupts,  nor 
was  it  subject  to  levy  and  sale  under  judicial  process  against  them. 

Without  special  reference  to  the  assignments  of  error,  we  have 
considered  all  material  questions  arising  in  the  case,  and  for  the  rea- 
sons stated  we  are  of  the  opinion  that  the  judgment  should  be  af- 
firmed.    So  ordered. 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      147 

MOAKES  V.  NICHOLSON. 

•  (Court  of  Common  Pleas,  1SG5.     19  C.  B.  [N.  S.]  290,  34  L.  J.  C.  P.  273.) 

In  this  case  the  plaintiff  sought  to  recover  damages  for  the  con- 
version of  a  cargo  of  coal ;  and  the  following  facts  were  proved  at 
the  trial : 

On  the  9th  of  December,  1864,  at  Hull,  a  person  named  Pope  bought 
of  a  person  named  Josse  a  quantity  of  coal,  and  a  great  deal  of  evi- 
dence, oral  and  written,  was  given  at  the  trial  in  order  to  shew  the 
terms  of  the  sale,  the  defendant  contending  that  by  the  terms  of  this 
sale  there  was  to  be  "payment  in  cash  against  bill  of  lading  in  the 
hands  of  Josse's  agent  in  I^ondon,"  and  that  it  was  not  the  intention 
of  the  parties  that  the  property  in  the  goods  should  pass  till  payment. 
The  coal  at  the  time  of  the  contract  was  lying  undistinguished  in  a 
heap  at  Josse's  yard,  containing  a  much  larger  quantity  than  that 
contracted  for,  and  it  was  to  be  shipped  on  board  a  vessel,  which  was 
chartered  by  Pope  in  his  own  name  and  on  his  own  behalf,  to  carry 
it  to  London.  On  the  13th  of  December,  whilst  the  whole  or  all 
but  a  very  small  portion  of  the  coal  was  still  undistinguished,  Pope 
sold  the  coal  he  had  contracted  for  to  the  plaintiff  on  the  Coal  Ex- 
change in  London.  The  plaintiff  resold  on  the  same  day  at  a  higher 
price,  and  before  action  had  paid  Pope.  By  the  19th  of  December 
the  coal  was  shipped  and  the  captain  signed  three  bills  of  lading, 
stating  the  coal  was  to  be  delivered  to  "Pope  or  order"  on  being  paid 
freight  and  demurrage  as  by  charter-party.  One  only  of  these  bills 
was  stamped,  and  this  Josse  retained ;  the  second,  together  with  an 
invoice  and  a  letter  announcing  the  loading,  was  sent  on  the  19th  of 
December  to  Pope  who  received  them  next  day.  Josse  not  being 
able  to  get  his  money  from  Pope,  sent  the  stamped  bill  of  lading  to 
the  defendant,  his  agent,  with  directions  to  stop  the  delivery  of  the 
coal,  and  the  captain,  under  the  defendant's  directions,  refused  to 
deliver  to  those  claiming  through  Pope,  and  the  defendant  himself 
took  the  cargo. 

The  jury  found  that  the  sale  was  for  cash,  and  the  learned  Judge 
directed  a  verdict  for  the  plaintiff,  and  gave  the  defendant  leave  to 
move  to  set  this  verdict  aside  and  enter  one  for  himself,  on  the 
grounds  that  on  the  facts  admitted  and  proved  the  defendant  was  en- 
title to  the  verdict,  that  the  defendant  had  a  right  to  stop  the  coals 
in  transitu,  and  that  neither  Pope  nor  the  plaintiff'  had  any  right  to 
the  property  and  possession  of  the  coals, 

A  rule  nisi  having  been  obtained  pursuant  to  such  leave,     *     *     * 

Eari^e;,  C.  J.  I  am  of  opinion  that  this  rule  should  be  made  abso- 
lute. The  action  is  brought  on  the  ground  that  the  cargo  had 
vested  in  Pope.  The  coals  were  sold  by  Josse  to  Pope,  by  Pope  to 
Moakes  (the  plaintiff),  and  he  again  passes  them  on.  One  material 
point  is,  whether  Moakes  has  a  better  title  than  his  vendor  Pope,  and 


148      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

I  think  he  has  no  better  title.  The  rule  that  a  man  shall  not  have  a 
better  title  than  his  vendor  is  not  universal  because,  for  instance, 
there  are  cases  where,  if  the  goods  be  in  possession  of  a  man  as  os- 
tensible owner,  together  with  the  document  of  title,  he  may  be  able 
to  confer  on  a  purchaser  a  better  title  than  he  has  himself. 

No  such  point,  however,  arises  here,  because  at  the  time  of  the 
treaty  between  Josse  and  Pope  the  goods  were  unascertained;  the 
treaty  was  that  the  property  should  not  pass  till  the  cash  was  paid, 
and,  whilst  the  goods  are  so  unascertained,  Pope  makes  the  contract 
with  JMoakes,  who  therefore  is  only  in  Pope's  shoes.  Then  what,  as 
between  Josse  and  Pope,  was  the  intention  of  the  parties?  The  prop- 
erty in  Josse  cannot  pass  out  of  him  unless  there  be  a  sale  which 
passes  it.  Now  Josse  intended  to  retain  the  property  till  the  cash 
was  paid,  and  if  so,  the  property,  did  not  pass;  that  was  clearly  the 
contract.  The  delivery  on  board  ship  had  no  effect.  Even  if  the  de- 
livery had  been  to  Pope,  yet  it  might  be  only  as  a  warehouseman. 

As  to  the  difficulty  which  has  been  raised  about  the  bills  of  lad- 
ing, and  as  to  their  allowing  Pope  to  pass  as  owner,  under  certain 
circumstances,  such  a  question  might  have  arisen ;  but  it  does  not 
arise  here,  because  when  the  plaintiff  bought  the  goods  they  were 
neither  ascertained  nor  loaded,  and  therefore  there  could  have  been 
no  such  bills ;  and  besides,  the  only  stamped  bill  of  lading  was  re- 
tained by  Josse,  and  the  effect  of  an  unstamped  bill  of  lading  is  well 
known. 

Byle:s,  J.  I  am  of  the  same  opinion.  I  had  doubts  at  one  time, 
because  I  thought  that  the  goods  were  sold  after  they  were  on  ship- 
board, and  after  the  bills  of  lading  were  in  Pope's  hands ;  but  it  ap- 
pears that  at  the  time  of  the  sale  not  only  were  the  goods  not  on 
board,  but  they  had  not  been  distinguished;  therefore  no  property 
passed  then,  and  it  is  now  clear  from  the  decided  cases  that  none 
passed  at  the  time  of  shipment,  because  the  shipment  was  not  intended 
to  be  a  delivery.  The  captain  was  a  sort  of  supercargo,  and  (as  the 
jury  find)  the  property  was  not  to  pass  till  all  the  conditions  were 
satisfied. 

As  to  any  representations  by  means  of  the  documents,  the  plaintiff 
could  not  have  Iseen  misled,  for  he  bought  before  Pope  had  them. 

KkaTing,  J.  I  am  of  the  same  opinion.  No  doubt  the  means  used 
by  Josse  to  retain  his  property  in  and  control  over  thf:  goods  were 
very  slovenly,  but  it  clearly  was  the  intention  that  the  property  should 
not  pass  without  the  cash.  The  jury  have  found  this,  and  tlieir  finding 
seems  in  accordance  with  the  evidence.  The  means  adopted  were 
slovenly,  for  circumstances  might  have  arisen  which  might  have  placed 
Josse  in  a  precarious  position.  Because  there  was  a  stamp  only  on 
one  of  the  bills  of  lading,  he  thought  himself  amply  secured.  Yet, 
if  unstamped  bills  of  lading  had  been  produced  to  a  subsec[uent  pur- 
chaser in  the  market,  the  effect  might  have  been  to  raise  questions 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      149 

which  might  have  jeopardized  Josse's  rights.     It  turns  out,  however, 
that  the  plaintiff  contracted  with  Pope  on  the  13th  of  December,  and 
it  was  not  until  the  19th  of  December  that  the  goods  were  ascertained 
and  shipped. 
Rule  absolute. 


ROBINSON  V.  POGUE. 

(Supreme  Court  of  Alabama,  1SS9.     S6  Ala.  257,  5  South.  6S5.) 

Appeal  from  Circuit  Court,  Montgomery  County ;  John  P.  Hub- 
bard, Judge. 

Detinue  by  Pogue  &  Son  against  Robinson  &  Ledyard  for  tobacco 
sold  by  plaintiffs  to  Rushton  &  Co.,  and  by  Rushton  &  Co.  to  defend- 
ants. The  defendants  requested  the  court  to  charge :  "(4)  If  the 
jury  believe  from  the  evidence  that  the  tobacco  w^as  delivered  to  the 
railroad  company,  and  the  bill  of  lading  was  made  consigning  the 
goods  to  Rushton  &  Co.,  then  the  title  to  the  goods  passed  by  this 
delivery  to  Rushton  &  Co.,  although  the  bill  of  lading  was  sent  to 
Simon  &  Bro.,  in  the  absence  of  proof  that  the  contract  of  sale  re- 
quired the  performance  of  something  on  the  part  of  Rushton  &  Co. 
before  the  goods  were  delivered."  The  request  was  refused.  De- 
fendants appeal. 

SoMERViLLE,  J.  The  bill  of  sale  from  Rushton  &  Co.  to  Robinson 
&  Ledyard,  the  appellants,  bearing  date  December  16.  1885,  and  trans- 
ferring to  them  the  stock  of  merchandise  of  the  vendors  in  absolute 
payment  of  a  pre-existing  debt,  is  the  same  instrument  constrr  d  by 
us  in  the  case  of  Robinson  v.  Fairbanks,  81  Ala.  132,  1  South.  552, 
and  again  in  Robinson  v.  Levi,  81  Ala.  134,  1  South.  554.  Upon  a 
state  of  facts  substantially  the  same  as  that  appearing  in  the  present 
record  we  then  observed  that  there  could  be  no  question  about  the 
fact  that  the  defendants,  if  the  evidence  was  to  be  believed,  "were 
bona  fide  purchasers  of  the  goods  for  value,  and  without  notice  of 
any  alleged  defect  in  the  title  of  Rushton  &  Co.,  just  as  fully  as  ifj 
they  had  paid  the  cash  for  them."  No  controversy  was  made  upon 
the  trial  raising  any  question  as  to  the  correctness  of  this  ruling. 
There  are  many  assignments  of  error  in  the  present  record.  We  do 
not  propose  to  notice  any  of  these  except  such  as  are  insisted  on  in 
the  brief  of  appellants'  counsel,  the  others  appearing  to  be  without 
merit. 

The  main  contention  here  insisted  on,  and  raised  by  the  rulings  of 
the  circuit  court,  relates  to  the  title  acquired  to  the  goods  in  contro- 
versy by  Rushton  &  Co.,  the  consignees  of  the  plaintiffs.  If  the  sale 
of  the  tobacco  to  them  was  completed  by  an  actual  or  constructive  de- 
livery, and  the  intention  of  the  vendors  was  that  the  title  should  un- 
conditionally pass,  then  the  appellants,  Robinson  &  Ledyard,  acquired 


150      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

a  good  title ;    otherwise  not.     The  contract  for  the  sale  of  the  goods 

was  made  by  Simon  &  Bro.,  of  Montgomery,  Ala.,  as  agents  of  the 

plaintiffs.     The  shipment  was  made  by  railroad,  and  a  bill  of  lading 

was  taken,  in  which  Rushton  &  Co.  were  named  as  the  consignees. 

This  bill  of  lading  was  mailed  to  Simon  Bros.,  with  a  bill  for  the 

goods  on  which  were  written  the  words  "Shipped  to  Rushton  &  Co., 

Montgomery,  Ala."    It  was  agreed  between  Rushton  &  Co.  and  Simon 

&  Bro.  that  the  latter  were  to  "retain  the  bill  of  lading"  until  the  goods 

were  paid   for,  but  there  is  no   evidence  that  the  goods  themselves 

were  to  be  retained  until  the  price  was  paid.     The  evidence,  on  the 

P contrary,  tends  to  prove  that  the  sale  was  made  on  credit,  after  closely 

I    inquiring  into  the  financial  status  of  the  consignees.    The  tobacco  was 

'    delivered  by  the  railroad  to  the  consignees,  without  the  presentation 

of  the  bill  of  lading. 

Where  goods  have  been  sold  and  are  delivered  by  the  vendor  to  a 
common  carrier,  consigned  without  reservation  to  the  vendee,  the 
question  as  to  whether  the  title  eo  instanti  passes  to  such  consignee, 
depends  upon  the  intention  of  the  vendor,  to  be  gathered  from  all 
the  circumstances  of  the  case.  There  is  no  doubt  as  to  the  correctness 
of  the  general  rule  that  where  the  bill  of  lading  shows  a  consignment 
J  by  the  vendor  to  the  vendee,  in  ordinary  form,  and  no  other  circum- 
I  stance  appears  as  to  the  intention,  the  prima  facie  legal  presumption 
'  is  that  an  unconditional  delivery  to  the  consignee  is  contemplated. 
But  this  presumption  of  fact  may  be  rebutted  by  evidence  showing 
a  contrary  intention.  Jones  v.  Sims,  6  Port.  138,  (1837;)  Ezell  v. 
English,  6  Port.  317;  Emery  v.  Bank,  25  Ohio  St.  360,  18  Am.  Rep. 
299 ;  2  Amer.  &  Eng.  Cyclop.  Law.  242 ;  People  v.  Haynes,  14  Wend. 
(N.  Y.)  546,  28  Am.  Dec.  530;  Everett  v.  Coffin,  6  Wend.  (N.  Y.) 
603,  22  Am.  Dec.  551;  Ostrander  v.  Brown,  15  Johns.  (N.  Y.)  39, 
8  Am.  Dec.  218,  note;  Express  Co.  v.  Greenhalgh,  80  111.  68.  The 
title  of  the  goods  is  commonly  retained  in  the  consignor,  by  taking  the 
bill  of  lading  to  his  own  order,  or  in  blank,  or  by  drawing  on  the 
consignees  with  the  bill  of  lading  attached  to  the  draft,  or  other  like 
procedure,  indicating  an  intention  to  retain  in  himself  a  jus  disponendi 
over  the  goods  until  the  price  is  paid,  or  until  the  happening  of  some 
other  contingency.  McCormick  v.  Joseph,  77  Ala.  236;  Chandler  v. 
Sprague,  38  Am.  Dec.  417-421,  note;  Bank  v.  Jones,  55  Am.  Dec. 
299,  note;   Dows  v.  Bank,  91  U.  S.  618,  23  L.  Ed.  214. 

The  delivery  to  the  common  carrier,  in  cases  of  the  former  class,  is 
deemed  prima  facie  a  delivery  to  the  consignee,  not  only  when  the 
consignment  is  made  to  a  carrier  named  by  the  consignee,  but  also 
when  made  to  some  carrier  in  the  usual  course  of  trade,  who  thus  be- 
comes impliedly  the  agent  of  the  consignee  to  receive  and  transport 
the  goods  at  his  risk,  the  sale  thus  becoming  presumptively  complete 
at  the  point  of  shipment,  although  the  price  is  not  to  be  paid  until  the 
goods  reach  their  destination.    Garbracht  v.  Com.,  96  Pa.  449,  42  Kva. 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      151 

Rep.  550;  Pilgreen  v.  State,  71  Ala.  368;  Sarbecker  v.  State,  65  Wis. 
171,  26  N.  W.  541,  56  Am.  Rep.  624;  Hausman  v.  Nye,  62  Ind.  485, 
30  Am.  Rep.  199.  Hence  it  is  commonly  held  that  the  consignee  in 
a  bill  of  lading,  where  there  is  no  reservation  of  title  by  the  consignor, 
has  vested  in  him  such  a  property  in  the  goods  as  to  authorize  him 
to  sue  the  carrier,  in  his  own  name,  for  their  injury,  loss,  or  recovery 
in  trover,  detinue,  or  other  appropriate  action.  Chandler  v.  Sprague, 
38  Am.  Etec.  423,  note;  Potter  v.  Lansing,  3  Am.  Dec.  310,  318, 
note;  Ang.  Carr.  §  497;  Griffith  v.  Ingledew,  6  Serg.  &  R.  (Pa.) 
429,  9  Am.  Dec.  444;  Express  Co.  v.  Armstead,  50  Ala.  351;  Rail- 
road Co.  V.  \Mlliams,  54  Ala.  168. 

Under  these  principles  of  law,  the  refusal  of  the  fourth  charge  re- 
quested by  the  appellants  was  error.  If  the  facts  hypothesized  in  this 
charge  were  believed  by  the  jury,  the  consignees  could  have  recovered 
the  goods  from  the  railroad  company.  Hence  their  delivery  without 
presentation  of  the  bill  of  lading  did  not  presumptively  prejudice  the 
rights  of  the  consignees.  The  case  presents  no  question  whatever  in- 
volving the  rights  of  a  transferee  of  the  consignor,  claiming  an  interest 
by  purchase  in  the  property  as  holder  of  the  bill  of  lading.  If  the 
sale  was  on  credit,  and  the  goods  were  not  to  be  retained  until  the 
price  was  paid,  the  mere  retention  of  the  bill  of  lading  by  the  agent 
of  the  consignor  would  not  prevent  the  sale  from  becoming  complete. 

We  cannot  perceive  that  the  case  is  affected  by  Rushton  &  Co.'s 
declaration,  made  to  Simon,  before  delivery  of  the  goods  by  the  rail- 
road, that  they  did  not  want  the  goods,  inasmuch  as  there  was  no  evi- 
dence tending  to  show  the  assent  of  Simon  &  Bro.,  or  their  principals, 
the  consignors,  to  release  the  consignees  from  the  purchase,  or  to  re- 
scind the  trade.  It  required  the  concurring  assent  of  both  contracting 
parties  to  rescind  the  trade,  just  as  fully  as  it  did  originally  to  make 
it.  Neither  alone  could  do  so.  The  evidence  on  this  point  was  irrele- 
vant, and  should  have  been  excluded. 

The  judgment  is  reversed,  and  the  cause  remanded. ^^ 


I 


GREENWOOD  GROCERY  CO.  v.  CANADIAN  COUNTY  MILL 

&  ELEVATOR  CO. 

(Supreme  Court  of  South  Carolina.  1905.     72  S.  C.  4.50,  52  S.  E.  191,  2  L.  P 
A.  [N.  S.]  79,  110  Am.  St.  Rep.  627,  5  Aun.  Cas.  26L) 

Woods,  J.  The  complaint  in  this  cause  is  to  recover  damages  fc 
breach  of  a  contract  to  deliver  a  car  load  of  flour  to  the  plaintifl:.  Tlv 
defendant  being  a  foreign  corporation,  an  attachment  was  issued  to 
obtain  jurisdiction  and  under  the  warrant  the  flour  was  seized  in  the 
hands  of  the  railroad  company  at  Greenwood,  S.  C.     The  defendant 

3  7  See,  also,  Wigton  v.  Bowley,  130  Mass.  252  (1881). 


152      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (CIl.  2 

moved  to  dissolve  the  attachment,  on  the  ground  that  it  appeared  from 
the  complaint  and  the  affidavit  the  flour  was  the  property  of  the  plain- 
tiff and  not  of  the  defendant,  and  hence  the  court  was  without  juris- 
diction.   The  motion  was  refused  and  defendant  appeals. 

The  essential  facts  stated  in  the  complaint  and  the  affidavit  are  as 
follows :  The  defendant,  Canadian  County  Mill  &  Elevator  Company, 
a  corporation  resident  in  El  Reno,  Okl,  contracted  to  sell  and  deliver  to 
plaintiff,  Greenwood  Grocery  Company,  at  Greenwood,  in  this  state, 
250  barrels  of  flour  at  $4.50  per  barrel.  The  defendant  consigned  to 
the  plaintiff  the  flour,  and  sent  draft  on  plaintiff,  .with  bill  of  lading 
attached,  to  the  Bank  of  Greenwood,  but  the  draft  required  payment 
for  the  flour  at  $5.50  per  barrel,  instead  of  $4.50,  the  contract  price. 
Plaintiff  tendered  to  the  bank  the  contract  price  and  demanded  the  bill 
of  lading,  but  the  bank  refused  to  accept  less  than  the  full  amount  of 
defendant's  draft,  and,  upon  plaintiff's  refusal  to  pay  more  than  the 
contract  price,  withheld  the  bill  of  lading.  Thereupon  the  plaintiff 
brought  this  action  for  damages,  attaching  the  flour  in  the  hands  of 
the  railroad.  The  defendant's  position  is  that  when  the  flour  was  de- 
livered to  the  carrier  consigned  to  the  plaintiff,  it  ceased  to  be  the  prop- 
erty of  the  defendant,  and  became  the  property  of  the  plaintiff,  sub- 
ject only  to  the  right  of  stoppage  in  transitu,  and  that  therefore  the 
attachment  must  fall. 

1.  The  general  rule  is  that  an  attachment  will  not  be  dissolved,  on 
the  ground  that  the  defendant  has  no  title  to  the  property,  or  that  it 
is  the  property  of  the  plaintiff.  The  defendant's  lack  of  interest  in  the 
property  would  affect  the  title  of  the  purchaser  under  the  attachment, 
but  not  the  validity  of  the  process.  Drake  on  Attachments,  §  417.  As 
said  in  Metts  v.  Insurance  Company,  17  S.  C.  120,  123:  "The  attach- 
ment is  based  on  facts  disconnected  with  the  property,  and  it  must 
stand  or  fall  upon  these  facts."  But  it  is  manifest  this  reasoning  does 
not  apply  where  the  court  obtains  jurisdiction  of  a  nonresident  by 
virtue  of  the  attachment  of  his  or  its  property  in  the  state.  In  such 
case,  the  jurisdiction  .and  the  validity  of  the  attachment  depend  upon 
the  defendant  having  property  in  the  state,  and  if  this  fact  does  not 

,  appear,  it  is  fatal.  4  Cyc.  775.  In  this  case  the  flour  is  the  property 
in  this  state  alleged  to  belong  to  defendant,  and  if  the  title  to  that  has 
passed  from  the  defendant  to  the  plaintiff',  the  attachment  should  be 
dissolved. 

2.  The  sole  question,  therefore,  is  whether  by  drawing  on  the  plain- 
tiff with  the  bill  of  lading  attached  to  the  draft  and  refusing  to  deliver 
the  bill  of  lading  without  payment  of  the  draft,  the  defendant  retained 
title  and  right  of  possession  of  the  property.  The  eff'ect  of  a  bill  of 
lading  issued  by  the  carrier  who  is  a  third  party,  on  the  title  to  the 
property  as  between  the  consignor  and  consignee  is  a  question  of  fact 
depending  not  only  on  the  terms  of  the  paper  itself,  but  on  the  inten- 
tion of  the  parties  as  expressed  by  their  dealings  with  each  other.     1 


Sec.  8)       ISSUE   OF    DOCUMENT    OF   TITLE TRANSFER    THEREOF  153 

Benjamin  on  Sales,  §§  568,  579,  580;  Emery  v.  Irving  National  Bank, 
25  Ohio  St.  360,  18  Am.  Rep.  299 ;  24  A.  &  E.  Enc.  Law,  1066 ;  Ho- 
bart  V.  Littlefield,  13  R.  I.  341 ;  Merchants'  National  Bank  v.  Bangs, 
102  Mass.  291 ;  Kentucky  Refining  Co.  v.  Globe  Refining  Co.,  104  Ky. 
559,  47  S.  W.  602,  42  L.  R.  A.  353,  84  Am.  St.  Rep.  468 ;  Chandler 
V.  Sprague,  38  Am.  Dec.  418,  note ;   23  Eng.  Rul.  Cases,  383,  note. 

The  fact  that  the  bill  of  lading  is  taken,  making  the  goods  deliver- 
able to  the  order  of  the  vendor,  who  is  himself  the  consignor,  is  very 
strong  prima  facie  evidence  that  the  vendor  in  delivering  the  goods  to 
the  carrier  intended  to  reserve  the  title  until  payment  of  the  purchase 
money ;  and  when  a  draft  for  the  price  is  drawn  on  the  purchaser  with 
such  bill  of  lading  attached,  the  title  does  not  ordinarily  pass  to  him 
until  the  draft  is  paid.  Bank  v.  Rowan,  23  S.  C.  339,  55  Am.  Rep. 
26;  1  Benjamin  on  Sales,  §  567;  Porter  on  Bills  of  Lading,  §  482; 
Dows  V.  National  Exchange  Bank,  91  U.  S.  618,  23  L.  Ed.  214;  Ken- 
tucky Refining  Co.  v.  Globe  Refining  Co.,  104  Ky.  559,  47  S.  W.  602, 
42  L.  R.  A.  353,  84  Am.  St.  Rep.  468 ;  Hopkins  v.  Cowen,  90  Md. 
152,  44  Atl.  1062,  47  L.  R.  A.  124;  Emery  v.  Irving  National  Bank, 
25  Ohio  St.  360,  18  Am.  Rep.  299;  National  Bank  v.  Crocker,  111 
Mass.  167;  Bank  v.  Cummings,  89  Tenn.  609,  18  S.  W.  115,  24  Am. 
St.  Rep.  618 ;  Farmers'  &  Merchants'  National  Bank  v.  Logan,  74 
N.  Y.  568;  Lanfear  v.  Blossman,  1  La.  Ann.  148,  45  Am.  Dec.  76; 
Stollenwerck  v.  Thacher,  115  Mass.  224;  Erwin  v.  Harris.  87  Ga.  333, 
13  S.  E.  513.  But  this  presumption  may  be  rebutted  by  other  circum- 
stances and  previous  dealing  of  the  parties  evidencing  a  different  in- 
tention.    Porter  on  Bills  of  Lading,  §  485. 

In  this  case,  however,  it  seems  by  the  terms  of  the  bill  of  lading  thea 
goods  were  deliverable  to  the  consignee.  The  presumption  there  ford 
was  that  the  consignor  intended  the  title  to  pass.  Emery  v.  Irving  Nal 
tional  Bank,  25  Ohio  St.  360,  18  Am.  Rep.  299;  1  Benjamin  on  Sales, 
§  586.  If,  therefore,  the  railroad  company  had  delivered  the  goods 
to  the  consignee  without  the  surrender  of  the  bill  of  lading  and  with- 
out notice  of  any  reservation  of  title  and  possession,  it  would  not  be 
liable  to  the  consignor,  though  he  actually  intended  to  reserve  the  title 
and  possession  until  payment  of  his  draft  for  the  price.  Bank  v.  Rail- 
way Co.,  25  S.  C.  224. 

As  between  the  vendor  and  purchaser,  the  authorities  leave  no  room 
to  doubt,  however,  that  even  if  the  bill  of  lading  provides  for  deliv- 
ery to  the  consignee,  yet  if  the  consignor  draws  for  the  price  attach- 
ing the  bill  of  lading  to  the  draft,  this  is  sufficient  evidence  of  his  in- 
tention to  reserve  the  title  and  right  of  possession  until  the  draft  is 
paid,  and  the  consignee  is  not  entitled  to  the  goods  until  payment. 
Emery  v.  Irving  National  Bank,  25  Ohio  St.  360,  18  Am.  Rep.  299 ; 
Chandler  v.  Sprague,  38  Am.  Dec.  419,  note;  Bank  of  Rochester  v. 
Jones,  4  N.  Y.  497,  55  Am.  Dec.  290;  Cayuga  County  National  Bank 
v.  Daniels,  47  N.  Y.  631 ;  Marine  Bank  v.  Wright,  48  N.  Y.  1 ;  Halsey 


154      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

V.  \\^arden,  25  Kan.  128;  First  National  Bank  of  Green  Bay  v.  Dear- 
born/115  Mass.  219,  15  Am.  Rep.  92. 

Tliat  the  intention  of  the  shipper  as  evidenced  by  his  action  in  re- 
spect to  the  bill  of  lading  is  controlling,  is  supported  by  the  elaborate 
opinions  in  Shepherd  v.  Harrison,  23  E.  Rul.  Cases,  349,  especially  the 
opinions  of  Kelly,  C.  B.,  and  Lord  Chelmsford.  Here,  according  to 
the  statement  of  the  complaint  and  the  affidavit,  not  only  did  the  de- 
fendant, the  consignor,  express  its  intention  to  reserve  the  jus  dis- 
ponendi  by  presenting  through  a  bank  the  draft  with  the  bill  of  lading 
attached,  but  the  plaintiff  expressed  this  to  be  also  its  understanding 
of  the  contract  by  offering  to  pay  the  price,  as  it  claimed  it  to  be,  as  a 
condition  precedent  to  acquiring  possession  of  the  bill  of  lading,  and 
through  it  of  the  flour. 

It  is  argued,  however,  that  according  to  the  complaint,  which  must 
be  taken  as  true,  the  plaintiff  tendered  the  real  price  agreed  upon,  and 
that  by  such  tender  he  became  entitled  to  the  flour  without  respect  to 
the  amount  of  the  draft.  This  argument  is  not  without  force,  but  it 
is  not  convincing  nor  is  it  sustained  by  authority.  Even  the  important 
case  of  jMirabita  v.  Imperial  Ottoman  Bank,  3  Ex.  Div.  164,  cannot 
fairly  be  said  to  go  to  the  extent  of  holding  the  buyer  entitled  to  re- 
cover possession  upon  tender  of  any  amount  less  than  the  draft.  The 
question  whether  the  right  to  possession  would  pass  to  the  vendee  upon 
tender  of  less  than  the  amount  called  for  by  the  draft  if  the  less 
amount  tendered  be  the  true  amount  of  the  purchase  money,  did  not 
arise  and  was  not  decided.  There  the  draft  for  the  purchase  money 
with  the  bill  of  lading  attached  had  been  sent  to  the  defendant  bank, 
with  instructions  to  deliver  the  bill  of  lading  upon  payment  of  the 
draft.  The  plaintiff'  tendered  the  full  amount  of  the  draft,  and  de- 
manded the  bill  of  lading.  The  bank  refused  to  deliver  it,  claiming  it 
had  incurred  freight  charges  which  must  also  be  paid,  whereas  it  had 
done  nothing  to  make  itself  liable  for  freight. 

The  case  was,  therefore,  one  in  which  it  appeared  the  defendant 
bank,  on  its  own  responsibility,  had  refused  to  accept  the  full  amount 
claimed  by  the  vendor  as  expressed  in  the  draft,  upon  payment  of 
which  the  bill  of  lading  was  to  be  delivered  to  the  vendee.  Under 
these  facts,  the  bank  was  held  liable  to  the  vendee.  Lord  Justice  Cot- 
ton uses  the  following  language :  "So,  if  the  vendor  deals  with  or 
claims  to  retain  the  bill  of  lading  in  order  to  secure  the  contract  price, 
as  when  he  sends  forward  the  bill  of  lading  with  a  bill  of  exchange 
attached,  with  directions  that  the  bill  of  lading  is  not  to  be  delivered 
to  the  purchaser  till  acceptance  or  paymeint  of  the  bill  of  exchange, 
the  appropriation  is  not  absolute,  but  until  acceptance  of  the  draft,  or 
payment,  or  tender  of  the  price,  is  conditional  only,  and  until  such  ac- 
ceptance, or  payment,  or  tender,  the  property  in  the  goods  does  not 
pass  to  the  purchaser ;  and  so  it  was  decided  in  Turner  v.  Trustees  of 
Liverpool  Docks,  6  Ex.  543 ;  20  L.  J.  (Ex.)  393 ;   Shepherd  v.  Harri- 


I 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      155 

son,  Law  Rep.  4  O.  B.  196;  Ogg  v.  Shuter,  1  C.  P.  D.  47.  But  if  the 
bill  of  lading  has  been  dealt  with  only  to  secure  the  contract  price, 
there  is  neither  principle  nor  authority  for  holding  that  in  such  case 
the  goods  shipped  for  the  purpose  of  completing  the  contract  do  not 
on  payment  or  tender  by  the  purchaser  of  the  contract  price  vest  in 
him.  When  this  occurs,  there  is  a  performance  of  the  condition  sub- 
ject to  which  the  appropriation  was  made,  and  everything  which,  ac- 
cording to  the  intention  of  the  parties,  is  necessary  to  transfer  the 
property  is  done ;  and,  in  my  opinion,  under  such  circumstances,  the 
property  does  on  payment  or  tender  of  the  price,  pass  to  the  pur- 
chaser." 

From  the  context  and  the  facts  of  the  case,  as  hereinbefore  stated, 
it  is,  we  think,  manifest  that  the  court  is  referring  to  payment  or  ten- 
der of  the  price  as  expressed  in  the  draft  accompanying  the  bill  of 
lading,  and  not  some  price  which  the  vendee  contends  to  be  the  true 
one,  different  from  that  expressed  in  the  draft,  upon  payment  of  which 
the  bill  of  lading  was  to  be  delivered.  The  defendant's  argument  on 
this  point  leaves  out  of  view  the  principle  that  as  between  plaintiff  and 
defendant  in  the  circumstances  here  appearing,  the  flour  was  shipped 
on  condition  that  the  draft — not  the  amount  claimed  by  the  plaintiff  as 
the  true  price — should  be  paid  by  the  plaintiff  before  it  should  have 
the  flour.  Until  the  draft  is  paid  or  there  is  tender  of  the  amount  it 
calls  for,  the  contract  is  executory,  and  while  in  some  exceptional  cases 
an  executory  contract  for  the  sale  of  chattels  may  be  enforced  by  an 
action  for  specific  performance,  the  rule  is  that  a  buyer's  action  of 
claim  and  delivery  to  recover  possession  can  be  founded  only  on  an  ex- 
ecuted contract  of  sale.    2  Benjamin  on  Sales,  §  1305. 

Even  if  the  draft  and  bill  of  lading  had  been  sent  to  the  plaintiff 
itself  under  such  conditions  as  exist  here,  it  could  not  have  retained 
the  bill  of  lading,  which  was  the  symbol  of  the  goods,  without  pay- 
ment, or  at  least  acceptance,  of  the  draft.  1  Benjamin  on  Sales,  § 
570;  1  Daniel  on  Neg.  Instruments,  §§  1734,  1734a-1734c;  Tiede- 
mann  on  Commercial  Paper,  §  494;  Bank  of  Rochester  v.  Jones,  4 
N.  Y.  497,  55  Am.  Dec.  290;  Cayuga  County  National  Bank  v.  Dan- 
iels, 47  N.  Y.  631;  Marine  Bank  v.  Wright,  48  N.  Y.  1.  It  requires 
no  argument  to  show  that  it  is  of  the  utmost  importance  to  commerce 
that  a  bill  of  lading  should  have  full  effect  as  an  instrument  by  which 
a  vendor  or  shipper  may  retain  his  right  of  possession — jus  disponendi 
— using  it  as  a  symbol  of  the  property  to  express  his  intention  as  to 
the  conditions  upon  which  the  property  should  be  delivered.  The 
courts  of  this  country  and  of  England  have  with  practical  unanimity 
given  the  bill  of  lading  this  force.  But  even  if  the  defendant's  view 
were  correct,  that  the  tender  of  the  true  nrice  as  stated  by  the  plaintiff, 
without  respect  to  the  amount  required  by  the  draft  accompanying  the 
bill  of  lading,  passed  to  the  plaintiff  the  title  and  right  to  possession, 
the  plaintiff  would  still  have  his  election  to  sue  for  the  property  itself. 


\ 


156 


ISSUE    OF    DOCrMEXT    OF   TITLE TRANSFER    THEREOF 


(Ch.2 


or  for  damages  for  breach  of  the  contract  in  refusing  to  deliver  the 
goods.    24  A.  &  E.  Ency.  Law,  1149,  1150. 

On  the  facts  as  presented  in  the  complaint  and  the  affidavit,  the  de- 
fendant is  prima  facie  the  owner  of  the  flour.  The  judgment  of  this 
court  is  that  the  judgment  of  the  circuit  court  be  affirmed.'^ 


FARMERS'  &  MECHANICS'  NAT.  BANK  OF  BUFFALO  v. 

LOGAN. 

(Court  of  Appeals  of  New  York,  1S7S.     74  N.  Y.  56S.) 

FoLGER,  J.  This  is  an  action  brought  by  the  plaintiff  to  recover  of 
the  defendants  the  value  of  a  canal-boat  load  of  wheat,  alleged  to  be 
the  property  of  the  plaintiff,  and  to  have  been  taken  by  the  defend- 
ants and  converted  to  their  own  use. 

The  plaintiff  recovered  judgment  against  all  of  the  defendants. 
The  defendants,  Logan  and  Preston,  have  appealed,  and  they  con- 
test the  recovery.  They  did  in  fact  take  the  wheat  and  ship  it  abroad 
for  their  own  purposes  and  benefit.  They  bought  it  from  the  defend- 
ant Brown,  at  the  Produce  Exchange  in  New  York  city,  and  paid 
for  it,  all  in  the  usual  course  of  business  of  that  mart.  They  did 
not  see  nor  seek  for  any  evidence  of  the  title  of  Brown,  or  of  his 
right  to  sell ;  nor  was  there  any ;  save  that  the  wheat  was  in  his 
actual  custody,  by  virtue  of  a  special  deposit  of  it  with  him  in  trust, 
and  that  he  had  and  exhibited  samples  of  it  on  'change. 

The  wheat  was  first  owned  by  one  Perot,  at  Buffalo,  N.  Y.  It 
was  in  an  elevator  there.  Sears  &  Daw  were  commission  mer- 
chants at  that  place.  They  acted,  in  the  purchase  of  wheat  for  him,, 
as  correspondents  and  agents  there  of  the  defendant  Brown,  Avho 
resided  and  did  business  in  New  York  city.  At  this  time  they  had 
an  order  from  him  to  buy  two  boat-loads  of  wheat.  To  fill  that  or- 
der they  negotiated  with  Perot  for  the  wheat  in  the  elevator,  and 
bought  it  for  Brown.  But  they  bought  of  Perot  on  their  own  credit, 
and  they  paid  him  for  it  with  money  obtained  by  them,  as  will  ap- 
pear further  on.  They  took  a  bill  of  sale  from  Perot,  which  ran  in 
their  own  name,  to  themselves.  Perot  knew  not  Brown  in  the  trans- 
action. The  money  with  which  the  wheat  was  paid  for  to  Perot  was 
got  by  them  in  this  way : 

After  the  wheat  was  spouted  from  the  elevator  into  a  canal-boat^  I 
owned  and  navigated  by  persons  not  connected  with  the  defendant  j 
Brown,  the  master  of  it  made  a  bill  of  lading,  stating  the  shipment] 
of  the  wheat  to  be  by  them,  as  agents  and  forwarders,  to  New  York, 
on  account  and  order  of  the  plaintiff,  with  a  direction  appended  ta 
notify  Brown  at  that  place.  They  then  drew  their  own  draft  on^ 
Brown,  to   the   official   order   of  the  plaintiff's   cashier.     That   draft  | 

38  See,  also,  Hiliuer  v.  Hills,  138  Cal.  134,  70  Pac.  lOSO  (1902). 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      157 

and  the  bill  of  lading,  with  a  certificate  of  insurance  of  the  wheat, 
were  given  to  the  plaintiff,  which  with  notice  of  all  the  facts  at  that 
time  existing,  on  the  strength  and  security  of  those  papers  discounted 
the  draft  for  Sears  &  Daw,  and  gave  the  avails  thereof  to  them. 
The)^  deposited  the  money  thus  obtained  to  their  own  credit,  in  the 
White's  Bank,  and  paid  Perot  for  the  wheat  by  their  own  check 
to  him  thereon.  The  bill  of  lading  and  other  papers  were  retained 
by  the  plaintiff.  The  draft  was  indorsed  by  it  to  its  correspondent 
bank  in  New  York  city.  The  bill  of  lading  and  certificate  of  insur- 
ance were  pinned  to  the  draft.  There  was  stamped  upon  the  draft 
a  direction  to  the  correspondent  bank  to  deliver  the  bill  of  lading  and 
certificate  to  Brown,  on  his  acceptance  of  the  draft.  There  was 
stamped  on  the  bill  of  lading  a  statement  addressed  to  Brown,  in 
purport  that  the  wheat  and  the  insurance  of  it  were  pledged  to  the 
plaintiff,  as  security  for  the  payment  of  the  draft ;  and  that  the 
wheat  was  put  into  his  custody  in  trust  for  that  purpose,  not  to  be 
diverted  to  any  other  use  until  the  draft  was  paid ;  and  that  upon  his 
accepting  and  paying  the  draft  the  claim  of  the  plaintiff  would  cease. 
The  papers  were  sent  to  the  correspondent  bank  in  New  York  city, 
with  instructions  in  conformity  with  the  matter  stamped  upon  the 
papers.  The  draft  was  presented  to  Brown  and  was  accepted  by 
him.  The  bill  of  lading  was  delivered  to  and  kept  by  him.  After 
that  the  wheat  reached  New  York  city;  but  before  the  maturity  of 
the  draft  Brown  procured  samples  of  it,  made  the  sale  of  it,  and 
with  money  got  from  Logan  &  Preston  by  an  advance  on  the  price, 
paid  the  freight  and  other  charges  of  the  carrier.  Logan  &  Preston 
received  the  wheat  from  the  carrier  and  sent  it  abroad. 

These  facts  are  sufficient  to  make  application  of  what  we  conceive 
to  be  the  law  controlling  the  case. 

There  lies  at  the  base  of  the  matter  an  elementary  principle  of 
the  common  law  well  known  and  often  stated,  but  which  may  be 
profitably  repeated  here,  from  a  high  source,  as  the  foundation  of 
our  discussion.  A  purchaser  of  chattels  takes  them,  as  a  general 
rule,  subject  to  whatever  may  turn  out  to  be  infirmities  in  the  title. 
A  purchaser  in  market  overt  is  an  exception.  But  if  not  bought 
there,  though  the  purchase  be  bona  fide,  the  title  got  may  not  pre- 
vail against  the  owner.  Again,  where  the  owner  has  parted  with 
the  chattel  to  another,  on  a  de  facto  contract,  a  purchaser  from  that 
other  bona  fide  will  obtain  an  indefeasible  title.  By  a  de  facto  con- 
tract is  meant  one  which  has  purported  to  pass  the  property  from' 
the  owner  to  another.     See  Cundy  v.  Lindsay,  L.  R.,  3  App.  Cas.  459. 

In  the  case  in  hand  there  was  not  a  purchase  by  the  appellants 
in  market  overt,  for  such  place  and  effect  of  sale  is  not  recognized 
in  this  State.  Wheelwright  v.  Depeyster,  1  Johns.  471-480,  3  Am. 
Dec.  345 ;  Mowrey  v.  Walsh,  8  Cow.  238.  The  title  set  up  by  the 
appellants  cannot  prevail  then,  unless  they  purchased  in  good  faith 


158      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

from  the  real  owner,  or  from  one  to  whom  the  real  owner  had  parted 
with  the  goods  on  a  de  facto  contract.  The  difference  between  the 
parties  arises  when  the  question  is  put,  to  whom  did  Perot,  the  ac- 
knowledged real  owner  at  first,  part  with  it  thereby;  to  Brown,  or 
to  Sears  &  Daw? 

The  appellants  claim  that  the  contract  of  sale  from  Perot  was  to 
Brown ;  that  he  became  the  owner ;  that  the  wheat  was  indeed 
pledged  to  the  plaintiff,  but  that  Brown  was  the  general  owner  and 
the  pledgor ;  that  when  the  plaintiff",  being  but  a  pledgee,  put  the  pos- 
session of  it  in  Brown,  it  lost  its  lien,  as  against  a  bona  fide  pur- 
chaser from  him.  So  that  the  important  inquiry  is,  who  did,  upon 
all  the  facts  of  the  case,  become  the  owner  of  the  w^heat,  by  the 
transaction  with  Perot?  It  is  conceded  to  be  the  vital  point  in  the 
case  of  the  appellants  that  Brown,  from  wdiom  they  purchased,  had 
a  title  of  his  own  in  the  goods,  which,  subject  to  the  lien  of  the  plain- 
tiff, he  could  transfer,  and  that  the  voluntary  surrender  of  the  pos- 
session to  himi  by  the  plaintiff  enabled  him  to  make  an  effectual 
transfer  of  it,  free  from  that  lien. 

It  will  not  have  escaped  an  observation  of  our  recital  of  facts  that 
Brown  furnished  no  money  nor  any  credit  for  the  purcliase  from 
Perot.  It  was  bought  by  Sears  &  Daw  of  him  on  their  credit 
on  his  trust  in  them  that  they  would  pay  for  it.  Nor  was  the  draft 
discounted  by  the  plaintiff  on  the  credit  of  Brown.  The  bill  of  lad- 
ing and  the  insurance  upon  the  wheat  were  the  security  upon  which 
the  plaintiff  rested.  Sears  &  Daw  remained  Hable  until  the  draft 
was  paid  or  they  were  discharged  by  some  act  of  the  plaintiff.  Nor 
did  Brown,  when  he  ordered  the  purchase  of  the  wheat,  expect  to 
furnish  the  money  to  pay  the  seller  of  it.  He  expected,  and  Sears 
&  Daw  expected,  that  the  money  would  be  got  in  the  way  in  w-hich 
it  was  got.  Nor  was  there  any  act  of  Perot,  or  of  Sears  &  Daw, 
in  dealing  with  the  wheat,  which  of  itself  passed  the  title  to  it  to 
Brown.  ^Mechanics'  &  Traders'  Bank  of  Buffalo  v.  Farmers'  &  j\Ie- 
chanics'  Nat.  Bank  of  Buffalo,  60  N.  Y.  40. 

The  bill  of  the  sale  from  Perot  was  to  Sears  &  Daw.  The  bill 
of  lading  from  the  carrier  was  not  to  Brown,  it  was  to  Sears  & 
Daw,  to  the  account  and  order  of  the  plaintiff.  The  shipment  is 
stated  indeed  to  be  by  them  as  agents  and  forwarders.  That  phrase 
does  not  of  itself  point  to  Brown  as  the  principal  or  consignee; 
and  wdien  understood,  in  knowledge  of  all  the  facts,  does  not  de- 
clare or  suggest  his  ownership  of  the  wheat.  In  sooth,  all  the  paper 
evidence,  up  to  the  time  that  the  bill  of  lading  went  into  the  keeping 
of  the  plaintiff,  gives  no  sign  of  ownership  in  Brown ;  but,  on  the 
contrary,  does  show  ownership  in  Sears  &  Daw,  transferred  to  no 
one,  save  it  be  the  plaintiff.  And  the  facts  given  by  the  oral  testi- 
mony show  the  purpose  to  bar  Brown  from  the  right  to  control  or 
dispose  of  the  wheat  tmtil  he  paid  the  draft. 


I 


Sec.  8)       ISSUE   OF    DOCUMENT    OF   TITLE TRANSFER    THEREOF  ISO' 

The  case  of  Turner  v.  Trustees  of  the  Liverpool  Docks,  6  Exch. 
Wels.,  H.  &  G.  543,  is  pertinent.  Merchants  in  Liverpool  sent  or- 
ders to  merchants  in  Charleston  to  ship  cotton  on  accoiuit  of  the 
former  in  their  vessel,  for  her  voyage  to  Liverpool,  They  in  Charles- 
ton bought  cotton  and  shipped  it  in  that  vessel.  They  took  a  bill 
of  lading  "to  order  or  to  our  assigns,"  and  indorsed  it  "deliver  the 
within  to  The  Bank  of  Liverpool  or  order."  They  drew  drafts  on 
the  merchants  in  Liverpool,  and  delivered  the  bill  of  lading  to  a 
bank  in  Charleston,  and  on  security  of  it  sold  the  drafts  to  the  bank, 
and  used  the  avails  to  pay  for  the  cotton,  or  to  re-imburse  themselves 
for  advances  therefor.  They  in  Liverpool  did  not  pay  the  bills. 
When  the  cotton  reached  that  port  the  question  arose  to  whom  did 
the  cotton  belong?  It  was  held  that  the  property  in  it  did  not  vest 
absolutely  in  them  in  Liverpool,  notwithstanding  the  delivery  of  it 
on  board  their  ship  to  their  servant,  the  master;  but  that  they  in 
Charleston  by  the  terms  of  the  bill  of  lading  had  reserved  to  them- 
selves a  jus  disponendi  of  the  cotton,  and  that  they  had  not  divested 
themselves  of  their  property  in  or  possession  of  the  goods ;  and 
that  having  bought  the  cotton  with  their  own  funds  on  their  own 
credit,  they  retained  their  property  in  it  until  payment  was  made  for 
it  by  the  men  in  Liverpool.  See  in  ace.  The  Frances,  9  Cranch,  183, 
3  L.  Ed.  698.  There  are  facts  in  the  case  cited  (6  Exch.,  supra) 
not  stated  by  us,  which  make  it  a  stronger  case  for  the  principals 
in  Liverpool  than  the  one  in  hand  is  for  Brown.  It  was  decided  in 
the  Exchequer  Chamber  after  elaborate  argument  and  full  considera- 
tion. It  has  been  since  recognized  and  approved  as  sound  and  au- 
thoritative. See  Mirabita  v.  Imp.  Ottoman  Bank,  L.  R.,  3  Exch. 
Div.  164.  The  conclusion  reached  in  it  satisfies  our  judgment ;  the 
principle  declared  in  it  is  sound,  and  applicable  to  and  decisive  of 
the  point  we  are  now  considering. 

When  commercial  correspondents  on  the  order  of  a  principal 
make  a  purcliase  of  property  ultimately  for  him  but  on  their  own 
credit,  or  with  funds  furnished  or  raised  by  them,  and  such  course 
is  contemplated  when  the  order  is  given,  they  may  retain  the  title 
in  themselves  until  they  are  re-imbursed.  One  of  the  means  by 
which  this  may  be  done  is  by  taking  the  bill  of  sale  in  their  own 
names,  and  when  the  property  is  shipped,  by  taking  from  the  car- 
rier a  bill  of  lading  in  such  terms  as  to  show  that  they  retain  the 
power  of  control  and  disposition  of  it.  This  results  necessarily  from 
the  nature  of  the  transaction.  It  is  not  at  once  an  irrevocable  ap- 
propriation of  the  property  to  the  principal.  It  rests  for  all  of  its 
efficiency  and  prospect  of  performance  upon  the  intention  to  with- 
hold and  the  withholding  the  right  to  the  property,  so  that  the  right 
may  be  used  to  procure  the  money  with  which  to  pay.  It  contem- 
plates no  title  in  the  principal  until  he  has  re-imbursed  to  his  cor- 
respondents the  price  paid  by  them,  or  to  the  person  with  whom  they 


IGO      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

have  dealt  the  money  obtained  from  him  with  which  to  pay  that  price. 
From  the  start  the  idea  formed  and  nursed  is  that  the  property  shall 
be  the  means  of  getting  the  money  with  which  to  pay  for  it,  and 
that  the  title  shall  not  pass  to  him  who  is  to  be  the  ultimate  owner 
until  he  has  repaid  the  money  thus  got. 

Although  such  correspondents  act  as  agents,  and  are  set  in  mo- 
tion by  the  principal  who  orders  the  purchase,  yet  their  rights  as 
against  him  in  the  property  are  more  like  those  of  a  vendor  against 
a  vendee  in  a  sale  not  wholly  performed,  where  delivery  and  pay- 
ment have  not  been  made,  and  where  delivery  is  dependent  upon 
payment.  And  so  in  the  case  cited  from  6  Exch.,  supra,  such  cases 
of  vendor  and  vendee  are  looked  to  as  authority,  and  e  converso, 
that  case  is  relied  upon  in  L.  T.  Rep.,  3  Exch.  Div.,  supra,  which 
was  such  a  case  of  vendor  and  vendee.  The  rule  laid  down  is,  that 
the  property  remains  in  the  shipper ;  or  that  he  has  a  jus  disponendi, 
a  property  or  power  which  enables  liim  to  confer  a  title  on  a  pledgee 
or  vendee,  though  in  breach  of  his  contract  with  his  first  vendee ; 
and  that  whichever  it  is,  the  result  must  be  the  same.  Id.  If  the 
vendor  when  shipping  the  articles  which  he  intends  to  deliver  under 
the  contract,  takes  the  bill  of  lading  to  his  own  order,  and  does  so 
not  as  agent  or  on  behalf  of  the  purchaser  but  on  his  own  behalf, 
he  thereby  reserves  to  himself  a  power  of  disposing  of  the  prop- 
erty, and  consequently  there  is  no  final  appropriation,  and  the  prop- 
erty does  not  on  shipment  pass  to  the  purchaser.  Id.  So  if  the 
vendor  deals  with  or  claims  to  retain  the  bill  of  lading  in  order  to 
secure  the  contract  price,,  as  when  he  sends  it  forward  with  a  draft 
attached,  and  with  directions  that  it  is  not  to  be  delivered  to  the 
purchaser  until  payment  of  the  draft,  the  appropriation  is  not  abso- 
lute, and  until  payment  or  tender  of  the  price  is  conditional  only,  and 
until  then  the  property  of  the  goods  does  not  pass  to  the  pur- 
chaser (Id.) ;    and  to  this  Turner  v.  Trustees,  supra,  is  cited. 

We  see  no  principle  which  distinguishes  the  case  of  a  vendor  and 
a  vendee  in  this  respect,  from  that  of  a  correspondent  or  agent  buy- 
ing for  another,  yet  paying  the  price  from  his  own  means,  or  from 
moneys  by  agreement  raised  upon  the  property,  or  upon  his  own 
credit,  and  holding  the  property  as  security  until  the  principal  has 
made  re-imbursement.  Such  is  the  purpose  of  the  parties.  There 
is  no  intent  that  the  property  shall  be  appropriated  until  payment 
is  made.  And  unless  third  parties  are  unavoidably  misled  to  their 
harm,  they  have  no  cause  to  complain  of  a  purpose  so  reasonable 
and  productive  of  so  good  results. 

We  think  that  the  adjudications  on  this  side  of  the  water  are 
to  the  same  end.  There  have  been  repeated  adjudications  in  this 
court  whereby  the  legal  efifect  of  a  bill  of  lading  has  been  deter- 
mined, when  it  contained  some  special  clause  or  notation,  or  had 
upon  it  an  indorsement  which  pointed  out  a  particular  person  as  the 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      161 

one  on  whose  account  the  property  named  in  it  was  to  be  carried 
and  dehvered.  Bank  of  Rochester  v.  Jones,  4  N.  Y.  497,  55  Am. 
Dec.  290;  Dows  v.  Perrin,  16  N.  Y.  325;  Mechanics'  &  Traders' 
Bank  v.  Farmers'  &  Mechanics'  Bank,  60  N.  Y.  40 ;  First  Nat.  Bank 
of  Toledo  V.  Shaw,  61  N.  Y.  283 ;  s.  c.  on  second  appeal,  69  N.  Y. 
624;  Marine  Bank  of  Buffalo  v.  Fiske,  71  N.  Y.  353;  Bank  of  Com- 
merce V.  Bissell,  72  N.  Y.  615.  The  bill  of  lading  of  goods  thus  af-i 
fected  prima  facie  confers  upon  the  person  in  whose  favor  it  is  is-j 
sued,  or  to  whom  it  is  transferred,  the  legal  title  to  them.  4  N. 
Y.  497,  55  Am.  Dec.  290,  supra.  That  result  is,  though  the  transac- 
tion is  not  intended  to  give  the  permanent  ownership,  but  to  fur- 
nish a  security  for  advances  of  money  or  discount  of  commercial 
paper,  made  upon  the  faith  of  it.  Third  persons  dealing  with  prop- 
erty thus  shipped,  though  acting  in  good  faith,  in  the  regular  course 
of  business,  and  paying  value,  are  affected  by  the  terms  of  the  bill 
of  lading,  are  bound  to  look  into  it,  and  are  chargeable  with  a  con- 
structive notice  of  the  contents  of  it.  In  the  case  in  hand  had  the 
appellants  asked  for  the  bill  of  lading,  and  looked  into  it,  they  would 
have  seen  that  the  property  described  in  it  was  in  the  possession 
of  Brown,  with  a  special  and  restricted  right  over  it,  and  that  they 
could  not  deal  with  it  safely,  until  there  had  been  a  compliance  with 
the  condition  attached  to  that  possession.  City  Bank  v.  R.,  W.  & 
O.  R.  Co.,  44  N.  Y.  136.  And  as  they  were  chargeable  with  a  con- 
structive notice  of  the  contents  of  it,  there  is  the  same  legal  result 
as  if  they  had  looked  into  it.     Id. 

We  do  not  understand  that  the  learned  counsel  for  the  appellants 
takes  a  position  which  he  will  admit  is  hostile  to  these  adjudica- 
tions. He  seeks  to  distinguish  the  case  at  bar  from  those  cited. 
He  admits,  as  we  understand  him,  that  had  this  case  stood  alone 
upon  the  bill  of  lading,  the  defendants  would  have  been  properly 
cast  in  judgment.  But  he  insists  that  Brown  was  the  general  owner 
of  the  wheat ;  that  the  plaintiff  voluntarily  put  it  into  his  posses- 
sion ;  that  being  in  his  possession  with  its  consent,  he  being  general 
owner  of  it,  the  appellants  were  no  longer  bound  to  look  into  the 
bill  of  lading,  and  had  not  constructive  notice  of  its  contents.  There 
is  a  subsidiary  position  that  the  plaintiff,  having  only  a  special  prop- 
erty in  the  wheat  as  a  pledgee,  could  not  commit  it  to  the  posses- 
sion of  Brown,  as  he  was  the  general  owner  and  pledgor  of  it,  with- 
out losing  that  special  property  to  a  bona  fide  purchaser  from  him. 

It  is  seen  at  once  that  the  important  thing,  in  this  contention, 
is  that  Brown  was  the  general  owner  of  the  wheat ;  for  on  the  ex- 
istence of  that  depend  both  the  propositions  put  forth.  We  think 
that  we  have  shown  that  the  idea  of  a  general  ownership  in  him  is 
not  consistent  with  the  facts  of  this  case,  nor  with  the  rules  of  law 
declared  in  like  or  analogous  cases.  To  be  sure,  by  his  order  to 
Wood  w.  Sales — 11 


162      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

Sears  &  Daw  to  purchase  the  wheat  for  him,  he  set  on  foot  a  course 
of  action,  which  if  carried  out  to  the  end,  in  the  manner  proposed 
and  intended  by  all  the  parties  to  it,  would  have  vested  in  him  the 
general  and  unqualified  ownership.  But  he  never  had  the  power 
over  the  wheat  of  a  general  owner.  There  was  never  a  time  that 
he  had  such  dominion  of  it,  as  that  he  had  the  right  to  enjoy  or  do 
with  it  as  he  pleased,  even  to  spoiling  or  destroying  it ;  or  that  he 
had  that  right  in  it  by  which  it  belonged  to  him  in  particular,  to 
the  exclusion  of  all  others.  To  constitute  ownership,  in  the  sense 
of  that  phrase  as  here  used,  there  must  be  at  some  time  a  right  as 
ample  and  unrestricted  as  that.  When  that  right  once  exists,  he 
who  has  it  is  a  general  owner.  He  may  then  burthen  or  limit  that 
right,  or  subject  it  to  rights  created  by  him  in  others,  and  cease  not 
to  be  the  general  owmer.  But  he  has  not  become  the  general  owner, 
though  he  may  have  an  interest  in  the  property,  until  he  has  a  right 
as  great  as  that  stated  above. 

We  are  asked,  would  not  the  profit  have  been  Brown's  had  the 
wheat  advanced  in  value,  and  the  loss  his,  had  it  declined,  or  if  it 
had  been  destroyed  by  fire?  To  which  the  ready  answer  is,  what- 
ever had  chanced  to  it,  it  would  not  have  been  his,  as  between  him 
and  Sears  &  Daw  and  the  plaintiff,  until  he  complied  with  the  con- 
ditions on  which  it  was  bought  for  him,  that  is  to  say,  had  accepted 
and  paid  the  draft.  As  soon  as  he  paid  the  draft,  it  would  have  been 
his,  with  whatever  enhancement  of  value.  Had'  it  lessened  in  value 
or  been  burned  up,  he  would  still  have  been  liable  to  Sears  &  Daw 
for  the  price  of  their  services  and  for  their  expenses,  and  to  the 
plaintifif,  first,  on  his  promise  to  accept  the  draft,  and  after  accept- 
ance on  that  obligation,  to  pay  it.  This  position  is  noticed  in  Mi- 
rabita  v.  Imp.  Ottoman  Bank,  supra ;  and  while  holding  that  the 
shipper  may  retain  a  power  over  the  goods,  it  is  declared  that  the 
verdee  has  an  interest  in  them,  that  they  are  at  his  risk,  and  that 
the  loss  or  benefit  to  them  is  his.  This  particular  matter  is  treated 
of  in  Haille  v.  Smith,  1  B.  &  P.  563.  There  property  was  shipped 
by  the  owners  of  it,  and  the  bill  of  lading,  indorsed  in  blank,  and 
the  invoice,  were  sent  to  a  mercantile  house,  under  a  previous  agree- 
ment that  it  should  receive,  and  hold  and  sell  the  property,  and 
apply  the  avails  for  the  benefit  of  a  banking-house,  to  which  the 
owners  and  consignors  of  the  property  were  or  were  likely  to  be 
indebted.  The  point  was  there  made  that  the  risk  was  upon  the 
consignors,  up  to  the  time  of  a  sale,  and  that  they  had  an  insurable 
interest,  and  that  they  had  a  right  to  detain.  The  court  held  that 
the  bill  of  lading  operated  as  a  change  of  the  property ;  that  by  rea- 
son of  the  agreement  from  the  moment  that  the  goods  were  set  apart 
for  the  particular  purpose  of  securing  the  banking-house,  there  was  a 
change  of  property ;  but  as  it  was  a  change  of  property  for  the  pur- 
pose only  of  applying  the  proceeds  by  way  of  indemnity,  the  circum- 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      163 

stances  of  the  risk,  and  of  the  profit  and  loss,  referred  to  the  trust  with 
which  the  property  was  charged,  and  were  accounted  for  thereby;  and 
that  that  trust  being  that  the  proceeds  should  be  appHcable  to  the  debt 
of  the  banking-house  the  risk  must  remain  with  the  consignors,  not- 
withstanding the  change  of  property,  and  the  consignors  must  suf- 
fer or  be  benefited  by  the  loss  or  profit  upon  the  sale. 

It  would  seem  that  the  principle  thus  announced  is  equally  ap- 
plicable to  the  facts  in  the  case  in  hand,  though  they  differ  in  some 
particulars.  Here  the  wheat  is  bought  by  Sears  &  Daw  for  Brown, 
but  on  the  instant,  the  property  in  it  is  by  the  bill  of  lading  vested 
in  the  pJaintifif,  but  as  an  indemnity,  and  charged  with  a  trust  that 
it  be  sold,  if  not  paid  for  by  Brown,  and  the  avails  apphed  to  repay 
the  advance  made  upon  it.  In  analogy  with  the  decision  in  the  case 
cited,  why  is  not  the  risk  upon  Brown,  and  the  profit  or  the  loss 
his,  though  he  have  not  the  property  in  the  wheat?  It  cannot  be 
successfully  contended  that  until  Brown  paid  the  draft,  he  could  have 
maintained  an  action  for  the  delivery  of  the  wheat,  had  the  plaintiff 
retained  it.  He  could  not  have  shown  that  he  ever  had  right  to 
possession,  or  right  to  the  dominion  over  it  to  the  exclusion  of  all 
others.  "So  long  as  the  advances  were  not  paid,  there  was  no  the- 
ory whereby"  Brown  "could  claim  title.  It  had  never  been  in"  him. 
"At  the  moment  his  interest,  whatever  it  was,  accrued,  it  came  bur- 
flened  with  the  formal  ownership  of  the  plaintiff."  Bank  of  Toledo 
V.  Shaw,  supra.  Had  Sears  &  Daw  advanced  the  money  as  factors, 
in  compliance  with  the  order  of  their  principal  and  giving  him  credit, 
the  purchase  would  have  been  for  him  at  once,  and  he  would,  at 
the  instant,  have  become  the  owner  of  the  thing  bought.  But  thei 
facts  are  far  otherwise,  and  must  not  be  lost  sight  of.  At  the  out-j 
set,  as  one  of  the  first  steps  in  the  process,  the  legal  title  was  lodged! 
in  the  plaintiff,  not  to  leave  it  until  the  payment  by  Brown  of  the' 
draft. 

Thus  the  case  is  kept  out  of  the  law  governing  the  relations  of 
pledgor  and  pledgee.  The  plaintiff  was  not  a  pledgee  of  the  prop- 
erty of  Brown.  It  had  a  right  to  it,  not  the  qualified  and  special  prop- 
erty of  one  holding,  as  a  security,  a  chattel  belonging  to  another. 
It  had  the  legal  title,  under  an  agreement  to  transfer  it  on  payment 
being  made ;  it  "held  the  title  in  trust  for"  Brown,  "after  its  own 
claim  was  satisfied."  61  N.  Y.  283,  supra.  Nor  does  this  conflict 
with  Williams  v.  Littlefield,  12  Wend.  362.  There  the  factor  or  agent 
bought  on  terms  more  favorable  than  he  exacted  of  the  principals ; 
the  variation  he  made  was  a  departure  from  instructions  and  from 
the  course  of  former  dealing.  Here,  all  that  was  done  was  in  ac- 
cord with  previous  understanding. 

Such,  it  seems  to  us,  is  the  result  of  the  adjudications  in  this  coun- 
try. The  basis  of  the  opinion  in  61  N.  Y.  283,  supra,  is  that  the  legal 
title  to  the  property  was  in  the  bank,  as  assignee  of  the  bill  of  lading. 


164  ISSUE   OF    DOCUMENT    OF   TITLE TRANSFER    THEREOF         (Ch.  2 

It  is  well  to  notice  here  a  distinction,  that  is  attempted  to  be  made, 
beween  the  case  just  cited  and  the  one  in  hand.  It  is  said  that  there 
there  was  an  express  agreement  that  the  purchasing  agent,  or  the 
discounting  bank,  should  hold  the  property  until  the  draft  was  paid. 
Such  agreement  was  but  putting  into  terms  the  legal  effect  of  the 
transaction  in  the  case  before  us.  For  we  have  shown,  by  authority, 
that  the  taking  of  the  bill  of  lading  in  the  name  of  the  plaintiff,  for 
its  account,  and  the  discount  of  the  draft  by  it  on  the  strength 
thereof,  did  transfer  to  it  the  title  to  the  wheat.  And  in  61  N.  Y, 
283,  supra,  the  agreement  between  the  agents  and  the  bank  was 
like  that  here,  that  the  draft  should  be  drawn  on  the  principal,  and 
that  the  bill  of  lading  be  taken  iii  the  name  of  the  bank  as  security 
for  the  payment. 

Dows  V.  Nat.  Exch.  Bank,  91  U.  S.  618,  23  L.  Ed.  214,  stands 
upon  the  same  footing.  The  outset  of  the  opinion  in  that  case,  states 
the  only  question  to  be,  whether  the  ownership  of  the  property  had 
been  divested  before  the  conversion ;  and  that  the  court  has  only 
to  inquire  to  whom  the  wheat  belonged  when  it  came  to  the  hands 
of  Dows  &  Co.  The  opinion  declares  that  the  agents  at  Milwaukee, 
having  purchased  and  paid  for  it  with  their  own  money,  became  the 
owners  of  it.  This  is  placed  upon  the  fact,  that  not  being  furnished 
with  funds  by  their  principals,  they  raised  them  in  the  way  used  by 
Sears   &  Daw. 

It  is  said,  in  argument  before  us,  that  the  position  just  stated  was 
conceded  by  the  counsel  in  that  case,  and  the  inference  is  then  made 
here,  that  it  was  assumed  by  that  court  as  the  law  of  that  case,  with- 
out  consideration   or  deliberate  judgment,   or  as    necessarily  appli- 
cable to  every  case  of  like  facts.    We  think  that  the  position  is  stated 
by  the  court  as  the  law  of  that  case  and  of  every  case  showing  the 
same  facts  in  that  respect ;    though,  as  the  proposition  was  not  con- 
troverted by  counsel,  a  bare  statement  was  thought  to  be  enough 
without  discussion  or  elaboration.     Nor  is  there  meant  by  the  term 
"ownership''  only  a  special  property,  like  that  of  a  lienor  or  pledgee ; 
it  is  put  as  "the  absolute  ownership,"  "the  complete  power  of  dis- 
position."    In  this  view,  those  cases  are  not  applicable  here  whichj 
hold  that  a  delivery  to  a  vendee,  even  upon  condition  expressed  at] 
the  time,  will  maintain  a  right   in  a  bona  fide  purchaser  from  the] 
vendee.     Smith  v.  Lynes,  5  N.  Y.  41,  is  an  example  of  such  cases. 
Ballard  v.  Burgett,  40  N.  Y.  314,  and  Austin  v.  Dye,  46  N.  Y.  500,J 
show  the  distinction  which  exists ;    and  the  same  appears  in  consid- 
ering Rawls  v.  Deshler,  "42  N.  Y.  572,  and  ]M.  &  Traders'  Bank  v; 
F.  &  Mechanics'  Bank,  60  N.  Y.  40. 

Hence  there  was  no  relation  between  the  plaintiff  and  Brown  of] 
pledgee  and  pledgor;  and  hence  no  giving  up  by  it,  as  pledgee,  of  J 
the  possession  of  property,  held  by  it  in  pledge,  to  him  while  thel 
general  owner'  of  it.     It  is  not  therefore  needed  that  we  consider] 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      165 

whether,  if  such  were  the  case,  the  special  property  or  lien  in  it  of  the 
plaintiff   was    lost    thereby. 

Much  stress  is  put  upon  the  assumed  fact  that  the  right  of-  the 
plaintiff  in  the  wheat  was  a  secret  lien,  and  no  more.  Whether  a 
lien  merely  or  an  ownership  the  declaration  of  the  bill  of  lading, 
even  with  the  modification  thereof,  made  by  the  matter  stamped 
upon  it  by  the  plaintiff,  evinced  to  any  one  looking  at  it  that  Brown 
had  no  right  or  authority  to  dispose  of  the  wheat  until  he  had  paid 
the  draft.  As  it  is  conceded  that  possession  merely,  without  title, 
in  one  assuming  to  sell,  does  not  give  title  to  his  vendee,  what  is 
required  of  the  vendee  in  such  case,  if  it  be  not  to  examine  the  bill 
of  lading  or  other  evidence  of  title  ?  And  here  an  examination  would 
have  shown  that  Brown  could  not  give  good  title.  It  is  said  that 
as  the  carrier  could  properly  make  delivery  to  Brown,  the  entire 
functions  of  the  bill  of  lading  were  exhausted,  when  the  wheat  was 
transferred  from  out  the  canal-boat  into  the  sea-going  steamer.  But 
that  is  not  so,  for  by  that  transfer  there  was  but  a  change  of  posses- 
sion, and  if  possession  merely  did  not  give  title,  there  was  still  some- 
thing further  to  be  looked  for  and  required,  and  the  terms  of  the 
bill  of  lading,  even  as  modified,  still  stood  in  the  way  of  a  transfer 
of  the  absolute  ownership  of  the  wheat  by  Brown. 

And  we  now  come  back  to  the  elementary  rule  with  which  we 
started.  It  appears  that  there  were  infirmities  in  the  title  which  the 
appellants  got  from  Brown,  or  rather  they  got  no  title  from  him ; 
for  there  had  never  been  a  contract  de  facto  which  purported  to 
pass  the  property  from  the  owner  to  him.  All  that  the  appellants 
had,  upon  which  they  had  a  right  to  rely,  was  the  fact  of  possession 
of  the  wheat  by  Brown,  and  the  purchase  of  it  by  them,  in  accord- 
ance with  the  usual  course  of  business  on  the  Produce  Exchange. 
We  doubt  not  that  the  latter  makes  very  easy  and  rapid  the  trans- 
action of  an  immense  trade  in  the  agricultural  products  of  the  coun- 
try ;  and  that  it  would  tend  much  to  the  security  and  confidence 
with  which  it  could  be  done  if  the  law  of  market  overt  could  be  ap- 
plied to  it. 

But  such  is  not  the  rule  of  this  State  in  the  sale  of  chattel  prop- 
erty, and  we  may  not  declare  it  so  to  be.  The  purchaser  buys  at 
his  risk  of  the  title,  and  if  he  would  be  safe,  must  make  inquiry.  He 
may  not  with  certainty  stop  at  the  fact  of  possession,  but  must 
learn  how  the  possession  has  been  acquired.  In  every  such  case  as 
this,  the  muniments  of  a  real  title  are  easy  to  be  produced.  When 
the  property  is,  in  fact,  in  the  carrier's  hands,  the  bill  of  lading  will 
show  to  whom  alone  he  has  the  right  to  deliver  it.  And  if  the  direc- 
tions of  that  document  are  relied  upon,  there  cannot  be  much  risk. 
A  reliance  upon  it,  and  a  prior  inspection  of  it,  may  delay  trans- 
actions, but  they  will  protect  all  innocent  and  well-meaning  parties 
and  thwart  seriously  only  those  who  mean  to  do  wrong  or  are  too 


16G      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

reckless  to  try  to  do  right.  The  appellants  were  not  protected  by 
the  fact  of  possession  in  Brown,  because  possession  alone  does  not 
give  the  power  to  pass  a  valid  title.  Hence  when  they  bought  of  him 
they  got  no  greater  right  than  he  had  in  the  wheat.  This  need  not 
be  amplified  or  enforced,  for  the  appellants  concede  that  possession 
alone  is  not  such  evidence  of  ownership,  or  authority  to  sell,  as  that 
third  persons  have  a  right,  as  against  the  true  owner,  to  rely  thereon. 

The  appellants  offered  to  prove  on  the  trial  an  established  course 
of  business  in  the  trade  between  Buffalo  and  New  York  in  respect 
to  transactions  of  the  kind  involved  in  this  action.  The  court  ex- 
cluded the  evidence,  and  the  appellants  excepted.  We  think  that 
there  was  no  error  in  that.  The  manner  in  which  this  transaction 
was  to  be  carried  out  was  determined  by  the  papers  which  were 
made  between  the  parties  to  it.  If  that  manner  differed  from  the 
established  course  of  business,  then  that  course  was  overridden  by 
them.  If  it  agreed  with  them  then  evidence  of  it  would  neither 
make  nor  mar. 

The  judgment  appealed  from  should  be  affirmed.  All  concur  ex- 
cept RapalIvO,  J.,  not  voting. 

Judgment  affirmed.^ ^ 


OGLE  V.  ATKINSON  et  al. 

(Coiu-t  of  Common  Pleas,  1S14.     5  Taunt.  759.) 

Trover  for  a  quantity  of  hemp  and  flax.  The  cause  was  tried  be- 
fore Mansfield,  C.  J.,  at  the  sittings  after  Michaelmas  term,  1813.  and 
a  verdict  was  found  for  the  plaintiff,  subject  to  a  case.  In  1809,  the 
plaintiff  consigned  wines  to  Smidt  &  Co.  at  Riga,  for  sale  on  his  ac- 

3  9  See,  also.  Moors  v.  Kidder,  106  N.  Y.  32,  12  N.  E.  818  (1887);  Drexel  v. 
Pease,  133  N.  Y.  129,  30  N.  E.  732  (1892).  In  the  latter  case  the  court  said 
(133  N.  Y.  136,  30  N.  E.  734):  "As  stated  in  those  cases,  the  doctrine  is  that 
where  a  commercial  correspondent  advances  his  own  money  or  credit  for  a 
principal  for  the  purchase  of  propertj-  for  such  principal,  and  takes  the  bills 
.  of  lading  in  his  own  name,  looking  to  the  property  as  security  for  reim- 
!•  bursement,  siich  correspondent  becomes  the  owner  of  the  property,  instead 
i;  of  the  pledgee,  up  to  the  moment  ^^hen  the  oi'iginal  principal  shall  pay  the 
''  purchase-price,  and  the  correspondent  occupies  the  position  of  an  owner 
under  a  contract  to  sell  and  deliver  when  the  purchase-price  is  paid.  This 
doctrine  is  stated  in  Moors  v.  Kidder,  106  N.  Y.  32  [12  N.  E.  SIS],  and 
founded  upon  the  cases  cited  by  Finch,  J.,  in  that  case.  Nothing  therein 
gives  color  to  the  idea  that  the  correspondent's  ownership  is  of  that  char- 
acter which  would  permit  his  exaction,  even  though  agreed  to  by  the  prin- 
cipal, of  a  general  lien  upon  the  property  for  other  and  prior  indebtedness 
of  the  principal  as  against  one  in  the  situation  of  St.  Amant.  The  cor- 
respondent's position  is  one  of  ownership  so  far  only  as  is  necessary  to  se- 
cure him  for  tlie  advances  he  made  upon  the  merchandise  described  in  the 
bill  of  lading,  and  in  such  a  case  as  this  he  is  bound  to  sell  upon  receipt  of 
the  purchase  price  from  tlie  principal,  or  in  other  words,  upon  receipt  of 
the  amount  he  advanced  upon  its  credit.  In  no  other  sense  is  the  cor- 
respondent the  owner  of  the  property." 


Sec.  8)   ISSUE  OP  DOCUMENT  OF  TITLE TRANSFER  THEREOF      167 

count,  and  next  year  ordered  them  to  purchase  for  him  the  hemp 
and  flax  in  question.  In  April  1810,  the  plaintiff  sent  his  own  ship, 
the  Bremen  Packet,  to  receive  the  goods  so  ordered.  On  her  arrival 
at  Riga,  the  captain  received  from  Smidt  &  Co.  the  goods  in  question, 
with  others,  on  behalf  of  the  plaintiff,  and  as  the  plaintiff's  own  goods, 
which  Smidt  &  Co.  stated  to  the  captain  that  they  were.  These  goods 
not  fully  loading  the  ship,  Smidt  &  Co.  procured  other  goods  to  be 
shipped  on  freight:  the  captain,  by  agreement  with  the  plaintiff,  (his 
owner,)  was  to  have  £15.  per  cent,  primage  upon  the  ship's  homeward 
freight,  to  be  estimated  as  well  upon  the  plaintiff's  own  goods  as  upon 
those  which  were  actually  to  pay  freight,  the  rate  of  which  last  was 
£10.  per  ton,  but  Smidt  &  Co.  required  the  captain  to  estimate  the 
freight  upon  the  goods  received  for  the  plaintiff  at  £8.  per  ton  only. 
The  captain  objected  to  this  distinction,  but  Smidt  &  Co.  insisting,  that 
his  owner  was  entitled,  that  the  freight  upon  the  goods  belonging  to 
the  plaintiff  should  not  be  estimated  at  the  same  rate  which  the  other 
goods  were  to  pay,  at  length  the  captain  consented.  Before  the  ship 
left  Riga,  Smidt  &  Co.  wrote  a  letter,  without  date,  to  the  plaintiff, 
apprizing  him  of  having  shipped  the  hemp  and  flax  in  question  by  the 
Bremen  Packet,  and  stating  that  they  inclosed  the  bills  of  lading  and 
invoices  of  that  shipment,  for  which  they  debited  the  plaintiff's  ac- 
count, and  requested  that,  being  found  right,  the  plaintiff  would  have 
them  noted  in  conformity  therewith.  In  that  letter  were  inclosed  four 
invoices,  dated  18/30  June,  expressing  the  flax  to  be  shipped  on  board 
the  Bremen  Packet,  for  the  account  and  risk  of  the  plaintiff:  and 
Smidt  &  Co.,  after  enumerating  all  the  charges  on  the  cargo  and  ship, 
therein  charged  to  the  plaintiff  a  commission  of  two  and  a  half  per 
cent,  on  the  amount  of  the  goods  and  charges.  In  a  letter  of  15/27 
June,  they  promised  to  furnish  the  plaintiff  with  the  vouchers  of  the 
whole  shipment;  and  in  another,  mentioned  having  before  sent  him 
the  bill  of  lading  and  invoices  of  those  shipments,  performed  on  the 
plaintiff's  account  on  board  the  Bremen  Packet,  and  they  annexed  the 
duplicate  of  the  vouchers.  After  the  captain  had  received  the  goods, 
he  was  requested  by  Smidt  &  Co.  to  sign  a  bill  of  lading  for  them,  de- 
liverable to or  his  order,  for  which  he  was  to  receive  freight 

at  the  rates  therein  specified.  The  captain  objected  to  sign  the  bills 
of  lading  with  a  blank  for  the  name  of  the  consignee,  until  Smidt  & 
Co.  assured  him,  that  was  of  no  consequence,  as  the  goods  were  to 
be  delivered  to  his  owner,  upon  which  he  signed  it. 

The  first  mentioned  letter  to  the  plaintiff,  which  contained  the  in- 
voices and  bill  of  lading,  was  sent  by  Smidt  &  Co.  to  Lehr,  their  agent 
in  this  country,  in  a  letter  dated  Riga,  4/16  June,  wherein  they  stated, 
respecting  the  Bremen  Packet,  that  they  should  make  out  Ogle's  bills 
of  lading  to  order,  that  in  case  of  his  not  accepting  the  drafts,  Ruckers 
might  become  possessors  of  the  bills  of  lading;  and  after  stating  the 
amount  of  the  goods  loaded  for  the  plaintiff,  and  charges,  and  that 
there  would  be  very  little  of  the  proceeds  of  his  wines  remaining  at  his 


I(i8 


ISSUE   OF    DOCUMENT    OF   TITLE TRANSFER    THEREOF 


(Ch.  2 


disposal,  they  added  that  they  drew  on  him  only  £2500.,  which  bills 
they  remitted  to  Messrs.  Ruckers.  They  conceived  that  sum  to  be  the 
bal?irice  due  to  them,  which  the  plaintiff  disputed.  In  a  letter  of  2/14 
July,  Smidt  &  Co.  instructed  Lehr  to  take  the  necessary  measure,  that 
in  case  Smidt  &  Co.'s  drafts  of  £1300.  and  £1200.  at  three  months, 
drawn  on  the  4/16  June,  were  not  accepted,  he  should  otherwise  dis- 
pose of  the  bills  of  lading  he  had  in  hand,  and  let  Messrs.  Ruckers  re- 
ceive the  goods  and  dispose  of  them.  Lehr,  in  pursuance  of  these 
instructions,  called  upon  the  plaintiff  before  the  ship  arrived,  and  de- 
livered to  him  the  letter  inclosing  the  four  invoices,  and  stated  that 
Smidt  &  Co.  had  drawn  two  bills  upon  him  the  one  for  £1200.,  the 
other  for  £1300.,  which  were  in  the  hands  of  Messrs.  Ruckers,  and  re- 
quested the  plaintiff  would  accept  them :  the  plaintiff  refused,  and 
Lehr  in  consequence  indorsed  the  bill  of  lading  to  Messrs.  Ruckers. 
On  the  ship's  arrival  in  England,  before  any  of  the  goods  had  been  de- 
livered to  the  plaintiff,  Messrs.  Ruckers  claimed  the  goods  as  indorsees 
of  the  bill  of  lading,  but  the  captain  refused  to  deliver  to  them,  and  de- 
livered the  goods  to  the  plaintiff,  who  deposited  them  with  the  defend- 
ants as  warehousekeepers  on  his  account.  He  had  since  demanded 
them  back  from  the  defendants,  and  tendered  them  the  amount  of 
their  charges,  but  they  had  refused  to  deliver  them.  There  was  no 
tender  of  any  freight  for  the  goods.  Smidt  &  Co.  were  alien  enemies 
at  the  time  of  the  shipment  and  trial.  The  plaintiff  had  obtained  a 
license  from  the  crown  to  import  these  goods,  upon  which  license 
Smidt  &  Co.  had,  before  the  ship  left  Riga,  indorsed,  that  the  goods 
were  shipped  on  British  account.  If  the  plaintiff  were  not  entitled  to 
recover  the  value  of  the  goods  so  deposited  with  the  defendants,  a 
nonsuit  was  to  be  entered. 

GiBBS,  C.  J.     This  is  an  action  by  Ogle  against  Atkinsons,  into 
whose  hands  Ogle  had  delivered  goods,  brought  for  the  purpose  of  re- 
covering from  them  the  value  of  the  goods,  which  they  refuse  to  re- 
deliver, insisting  that  the  property  of  the  goods  is  in  Smidt  &  Co.,] 
from  whom  they  have  had  notice  to  detain  them.     There  are  two  pre- 
liminary points  made  by  the  plaintiff;  first,  that  the  defendants  cannot] 
refuse  to  deliver  up  the  goods  to  the  plaintiff  from  whom  they  received} 
them;   but,  if  the  property  is  in  others,  I  think  they  may  set  up  thiS; 
defence.    2dly,  it  is  said,  Ogle  has  a  lien  for  freight;   he  might  have! 
had  such  a  lien,  but  if  he  wrongfully  gets  the  goods  into  his  hands  onj 
a  claim  of  property,  he  cannot  afterwards  set  up  a  lien  for  freight. 
This  brings  us  to  the  true  question,  which  is,  in  whom  the  property  isj 
vested.     It  is  true,  that  the  goods  might  have  been  delivered  aboard] 
the  ship  on  the  terms  on  which  the  defendant  contends  they  were  de- 
livered:    and  if  they  had  been,  no  doubt  the  plaintiff  could  not  have] 
obtained  the  goods,  without  accepting  the  bills ;   but  were  they  so  de- 
livered?   Smidt  &  Co.,  in  their  letter  to  Ogle,  never  make  mention  of 
any  bills  to  be  accepted  by  Ogle.     No  doubt,  a  delivery  on  board  this 
ship  w-as  an  absolute  delivery  to  Ogle,  unless  qualified. 


Sec.  S)       ISSUE   OF    DOCUMENT    OF   TITLE TRANSFEIt    THEREOF  169 

Does  the  case,  therefore,  state  any  such  qualification?  The  case 
states  that  the  captain  received  them  as  the  plaintiff's  own  goods, 
which  means  his  own  goods  absolutely ;  not  with  any  qualification ; 
and  Smidt  &  Co.  represent  them  to  the  captain  to  be  the  goods  of 
Ogle,  and  as  such  they  are  delivered.  If  Smidt  &  Co.  had  said,  we 
deliver  the  goods  to  you,  to  be  the  goods  of  Ogle,  if  he  accepts  certain 
bills,  the  defence  would  avail ;  but  no  such  thing  passes.  I  cannot  an- 
nex to  this  delivery  the  qualification,  that  they  are  to  be  the  plaintiff's 
own  goods  if  he  does  certain  things.  The  captain,  then  receives  them 
as  Ogle's  absolutely.  Is  this  state  altered  ?  The  goods  go  on  board : 
bills  of  lading  are  tendered  to  the  captain  to  sign  in  blank :  the  captain 
objects.  According  to  the  defendant's  argument,  the  answer  should 
have  been,  I  leave  the  bills  in  blank,  because  it  is  as  yet  uncertain  to 
whom  the  bills  may  be  deliverable,  for  that  the  cargo  is  to  go  to  Ruck- 
er,  unless  the  plaintiff  accepts  certain  bills :  but  the  answer  given  is, 
the  blank  in  the  .bill  is  immaterial,  for  the  goods  are  at  all  events  to  be 
delivered  to  your  owner.  If  the  blank  was  immaterial,  it  imported  no 
alteration  in  the  terms  of  the  delivery ;  if  it  was  material,  a  fraud  was 
practised  on  the  captain,  which  cannot  avail  the  consignors. 

I  therefore  think  that  the  property  of  the  goods  entirely  vested  in 
the  plaintiff,  and  that  the  subsequent  acts  of  the  consignors  and  their 
agents,  cannot  prevent  him  from  recovering  against  the  defendants : 
the  judgment  therefore  must  be  for  the  plaintiff". 

Judgment  for  the  plaintiff.*" 


BARBER  V.  MEYERSTEIN. 

(House  of  Lords,  1S70.     L.  R.  4  H.  L.  317.) 

This  was  an  appeal,  under  the  Common  Law  Procedure  Act,  1854, 
against  a  decision  of  the  Court  of  Exchequer  Chamber,  by  which  a 
previous  decision  of  the  Court  of  Common  Pleas  had  been  affirmed. 
Law  Rep.  2  C.  P.  38,  66L 

The  facts  were  these:  In  August,  1864,  De  Souza  &  Co.,  of  Ma- 
dras, shipped  on  board  the  Acastus  227  bales  of  cotton  consigned  for 
sale  on  commission  to  Azemar  &  Co.,  of  London.  There  were  three 
bills  of  lading  making  one  set.  They  were  in  the  usual  form,  except 
as  to  the  last  sentence,  which  concluded  thus :  "In  witness  whereof 
I,  the  said  master  of  the  said  ship,  have  affirmed  to  three  bills  of  lad- 
ing, all  of  this  time  and  date,  one  of  which  being  accomplished,  the 
others  to  stand  void."  In  August,  1864,  the  vessel  sailed  for  London. 
De  Souza  &  Co.  drew  bills  of  exchange  against  this  cotton  upon  Aze- 
mar &  Co.  for  £3000.,  £1000.,  £1000.,  £1000.,  to  fall  due  between 
the  12th  of  January,  1865,  and  the  22d  of  JMarch,  1865.  These  bills 
were  duly  accepted  by  Azemar  &  Co.,  and  were  then,  with  the  three 

*o  Concurring  opinions  were  delivered  by  Heatli,  Chambre,  and  Dallas,  J  J. 


170      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

bills  of  lading,  deposited  with  the  London  branch  of  the  Chartered 
^lercantile  Bank  of  India.  At  the  end  of  1864,  Azemar  &  Co.  trans- 
ferred their  business,  including  the  consignment  by  the  Acastus,  to 
one  Abraham,  who  had  formerly  been  in  their  employment. 

The  Acastus  arrived  in  London  on  the  31st  of  January,  1865,  and 
went  into  the  St.  Katherine's  Docks.  On  the  2nd  of  February  Abra- 
ham made  an  entry  of  the  cargo  at  Cotton's  Wharf  (which  is  a  pub- 
lic sufferance  wharf)  in  the  form  given  by  one  of  the  Customs  Acts, 
the  16  &  17  Vict.  c.  107,  §  60. 

The  Sufferance  \Miarf  Act,  11  &  12  Vict.  c.  xviii,  contains  (cl.  5) 
the  following  enactment,  important  for  the  consideration  of  this  case, 
that  "all  goods  which  after  the  passing  of  this  Act  shall  be  landed  at 
any  of  the  public  suft'erance  wharves  aforesaid"  (of  which  Cotton's 
Wharf  was  one),  "from,  or  out  of,  any  ship  within  the  port  of  Lon- 
don, and  lodged  in  the  custody  of  the  wharfinger  for  the  time  being 
in  the  occupation  of  such  wharf,  either  at  such  wharf  or  elsewhere, 
shall,  when  so  landed,  continue  and  be  subject  to  the  same  lien  or 
claim  for  freight  in  favour  of  the  master  and  owner  of  the  ship 
from  or  out  of  which  such  goods  shall  be  landed,  or  of  any  other  per- 
son interested  in  the  freight  of  the  same  goods,  as  such  goods  were 
subject  to  whilst  the  same  were  on  board  such  ship,  and  before  the 
landing  thereof :  and  the  said  wharfinger,  his  servants  and  agents, 
are  hereby  required,  on  due  notice  in  writing  in  that  behalf  given  by 
such  master  or  owner  or  other  person  aforesaid  to  the  said  wharfinger, 
&c.,  to  detain  such  goods  in  the  warehouse  of  the  said  wdiarfinger, 
&c.,  until  the  freight  to  which  the  same  shall  be  subject  as  aforesaid 
shall  be  duly  paid,  together  with  the  wharfage  rent  and  other  charges 
to  which  the  same  shall  have  become  subject  and  liable." 

There  were  two  "stops"  lodged  against  this  cotton  from  the  Acastus, 
one  by  the  Chartered  Mercantile  Bank  of  India,  the  other  by  the  mas- 
ter for  the  freight.  On  the  9th  of  February  Abraham  instructed  Bar- 
ber &  Co.,  as  brokers,  to  sell  the  cotton,  and  they  obtained  from  him 
an  order,  in  virtue  of  which  they  were  allowed  to  take  samples.  On 
the  4th  of  March  Abraham  gave  a  cheque  which  covered  the  sums  due 
to  the  Chartered  Mercantile  Bank,  and  thereupon  the  bank  delivered 
up  to  him  the  three  parts  of  the  bill  of  lading,  and  so  put  an  end  to 
the  "stop"  which  had  been  lodged  on  account  of  the  bank.  On  the 
same  day  he  deposited  with  Meyerstein  (with  whom  he  had  other 
transactions)  one  of  the  three  parts  of  the  bill  of  lading  for  the  cot- 
ton by  the  Acastus,  together  with  the  original  consignment  to  Azemar] 
&  Co.,  and  thereupon  Meyerstein  gave  to  Abraham  a  cheque  for 
£2500.,  which  was  duly  paid.  Aleyerstein  asked  for  the  second  part 
of  the  bill  of  lading,  and  received  it.  He  did  not,  however,  ask  fori 
the  third  part,  believing  that  the  third  part  was  retained  by  the  cap-i 
tain  of  the  vessel. 

Barber  &  Co.  were  wholly  ignorant  of  these  transactions,  and  on 
Monday,  the  6th  of  March,  Air.  C.  Barber  advanced  to  Abraham,  by , 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      171 

cheque,  £1500.  on  the  cotton  by  the  Acastiis,  and  on  the  next  day, 
the  7th  of  March,  made  by  cheque,  a  farther  advance  of  £500.  upon 
receiving  the  third  of  the  set  of  bills  of  lading  (which  had  been  fraud- 
ulently kept  by  Abraham),  and  on  being  at  the  same  time  informed  of 
the  fact  that  the  stop  order  for  freight  had  been  removed.  On  the 
11th  of  March  Meyerstein  heard  for  the  first  time  that  the  Barbers 
had  been  employed  by  Abraham  to  offer  the  cotton  for  sale.  On  that 
day  they  lodged  their  third  copy  of  the  bill  of  lading  at  the  wharf. 
On  the  same  day  Meyerstein  obtained  from  Abraham  a  letter  ad- 
dressed to  Messrs.  Barber,  requesting  them  to  pay  over  to  him  "the 
surplus  net  proceeds  of  the  undermentioned  goods,  after  satisfying 
the  advances  you  have  made  us  (Abraham  &  Co.)  upon  the  same." 
Among  the  goods  thus  mentioned  was  the  cotton  by  the  Acastus. 

Meyerstein,  on  receiving  this  note,  struck  his  pen  through  this  item, 
saying  he  did  not  want  to  have  stolen  goods  transferred  to  him.  He, 
however,  forwarded  the  note  to  Messrs.  Barber,  and  stated  the  fact 
of  his  making  the  advance  of  £2500.,  though  the  evidence  left  it 
doubtful  whether  he  stated  the  exact  date  at  which  it  had  been  made. 
On  the  same  day  Messrs.  Barber  wrote  to  Meyerstein :  "We  have  this 
day  received  a  letter  from  Messrs.  Abraham  &  Co.  requesting  us  to 
pay  over  to  you  the  surplus  net  proceeds  of  324  bales  of  cotton,  as 
per  memorandum  at  foot,  which  shall  receive  our  attention  in  due 
course."  This  memorandum  was  a  copy  of  that  sent  by  Abraham,  and 
the  Acastus  was  struck  out  of  it — the  total  number  of  bales  in  each 
case  being  only  324,  while  if  those  of  the  Acastus  had  been  retained 
in  the  list  there  must  have  been  277  added  to  that  number. 

On  the  13th  of  March  the  Barbers  obtained  from  the  wharfingers 
at  Cotton's  Wharf  delivery  warrants  made  out  in  their  own  names  for 
the  277  bales  of  cotton,  which  they  sold  to  different  purchasers,  who 
received  them  under  the  warrants  delivered  by  the  Barbers  to  them. 
The  Barbers  claimed  to  satisfy  themselves  in  the  first  instance  for  their 
advances  out  of  the  proceeds  of  the  sales.  Meyerstein,  who  insisted 
that  his  claim  took  precedence  of  theirs,  thereon  brought  his  action 
against  Barber  &  Co.  The  declaration  was  in  the  form  of  money  had 
and  received,  with  a  count  for  wrongful  conversion.  The  Defendants 
pleaded,  never  indebted,  not  guilty,  and  that  the  goods  never  were 
the  Plaintiff's.    Issue  was  taken  on  all  these  pleas. 

At  the  trial,  before  Lord  Chief  Justice  Erie,  in  June,  1866,  he  di- 
rected a  verdict  to  be  entered  for  the  Plaintiff  for  the  whole  sum  he 
claimed,  reserving  leave  for  the  Defendants  to  move  to  enter  a  ver- 
dict for  them.  The  rule  was  obtained,  and  was  on  argument,  dis- 
charged. On  appeal  to  the  Exchequer  Chamber,  the  judgment  of  the 
Court  of  Common  Pleas  was  affirmed.    This  appeal  was  then  brought. 

The  Lord  Chancellor  (Lord  Hathdrle^y).  In  this  case  the 
House  is  called  upon  to  reverse  unanimous  judgments  of  the  Court 
of  Common  Pleas  and  of  the  Court  of  Exchequer  Chamber.  The  ef- 
fect of  these  judgments  is  this — to  determine  that,  as  to  the  Plaintiff, 


172      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

the  indorsee  for  value  of  a  bill  of  lading  of  goods  which,  at  the  time 
of  its  being  indorsed  to  him,  were  landed  at  a  sufferance  wharf  on 
the  Thames,  and  were  there  subject  to  two  stops  put  upon  them  (the 
one  by  the  shipowner  for  freight,  the  other  by  certain  mortgagees), 
the  security  so  indorsed  is  available  in  preference  to  the  claim  of  the 
Defendants,  who,  subsequently  to  such  indorsement,  obtained  pos- 
session of  the  goods  under  the  circumstances  I  am  about  to  mention. 

A  bill  of  lading  was  drawn  up  in  a  set  of  three,  and  after  the  in- 
dorsement of  the  first  two  of  the  three  to  the  Plaintiff  had  taken  place,_ 
the  consignee  of  the  goods  fraudulently  retained  the  third,  and  ob- 
tained advances  from  the  Defendants  on  the  security,  in  the  first  place, 
of  this  third,  and  proceeded  afterwards  to  the  wharf  where  the  goods 
had  been  deposited,  and  after  the  production  of  this  third  bill  of  lad- 
ing obtained  the  removal  of  a  stop  which  had  been  put  upon  the  goods 
for  freight.  I  should  have  before  mentioned  the  previous  removal  on 
the  part  of  the  mortgagees  (the  directors  of  the  Chartered  Bank  of 
India)  of  their  stop  in  respect  of  their  mortgage.  Possession  of  the 
goods  was,  under  those  circumstances,  obtained  by  the  Defendants,  the 
persons  who,  on  receiving  this  third  bill  of  lading  thus  fraudulently 
retained  by  the  consignee,  made  to  him  an  advance  on  the  goods  repre- 
sented by  this  bill  of  lading. 

The  question  has  really  turned  upon  one  point,  and  I  may  almost 
say  upon  one  point  alone,  namely,  whether  or  not  the  bills  of  lading 
had  fully  performed  their  office,  and  were  discharged  and  spent  at 
the  time  that  the  Plaintiff  took  his  security.  Whether,  in  other  words,, 
the  landing  of  those  goods  at  the  sufferance  wharf  in  the  name  of  the 
consignee,  but  subject  to  the  stop  which  was  put  upon  them  by  the 
shipowner,  and  the  stop  put  upon  them  by  the  mortgagees,  was,  or 
was  not,  a  delivery  which  had  exhausted  the  whole  effect  of  the  bill 
of  lading.  That,  I  think,  is  the  single  point  to  which  the  case  becomes 
reduced. 

It  appears  to  me,  my  Lords,  that  there  are  one  or  two  points  of  law| 
which  must  be  taken  to  be  clearly  established,  although  very  able  ef- 
forts, employed  with  considerable  ingenuity  and  resource,  have  beenij 
directed  to  the  shaking  of  those  w^ell-established  points  of  law.  I 
refer  particularly  to  the  very  able  argument  we  have  heard  from  Mr. 
Grantham  in  this  case  with  reference  to  the  first  step,  if  I  may  so  call 
it,  in  the  proceeding,  namely,  the  fact  of  the  first  assignment  for  value 
of  a  bill  of  lading  when  the  goods  are  not  landed,  but  are  still  at  sea. 
Now,  if  anything  could  be  supposed  to  be  settled  in  mercantile  law, 
I  apprehend  it  would  be  this,  that  when  goods  are  at  sea  the  parting 
with  the  bill  of  lading,  be  it  one  bill  out  of  a  set  of  three,  or  be  it 
one  bill  alone,  is  parting  with  the  ownership  of  the  goods. 

Mr.  Grantham  has  raised  this  argument  upon  the  frame  of  the  bill 
of  lading  itself,  which  I  apprehend  is  in  the  common  form  where 
three  bills  are  given.  The  form  of  the  bill  of  lading  to  which  he  spe- 
cially referred,  and  upon  which  he  founded  the  argument  I  now  ad- 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      1T3 

vert  to,  in  this,  that  the  shipper  undertakes  to  deliver  these  goods,  the 
cotton,  to  the  Souzas  or  order,  or  to  their  assigns,  he  or  they  paying 
the  freight  for  the  goods  at  the  rate  there  mentioned ;  and  then,  at  the 
end  of  the  document  we  have  these  words,  "In  witness  whereof  I,  the 
master  of  the  ship,  have  affirmed  to  three  bills  of  lading,  all  of  this 
tenor  and  date,  one  of  which  being  accomplished  the  others  to  stand  ^^ 
void."  i! 

The  argument  has  been  this,  that  the  bill  of  lading  has  not  acconi-  ^ 
plished  its  office  until  not  only  the  goods  are  landed,  but  the  freight 
is  paid,  and  the  whole  matter  which  is  the  subject  of  the  contract  of 
the  shipowner  has  been  achieved ;  and  that,  accordingly,  if  that  be 
law,  it  follows  that  if  one  bill  of  lading  be  assigned  while  the  ship  is 
at  sea,  and  a  second  bill  of  lading  be  assigned  to  a  second  person, 
fraudulently,  of  course,  and  a  third  bill  of  lading  be  assigned  to  a 
third  person,  also  fraudulently,  of  course,  it  becomes  simply  a  matter 
of  expedition  and  race  between  the  several  parties  who  have  taken 
those  different  assignments  of  the  bills  of  lading;  because  until  the 
goods  have  actually  been  landed  and  fully  delivered,  each  bill  of  lad- 
ing, according  to  the  argument,  is  to  be  considered  as  of  equal  force 
until  one  of  the  bills  has  been,  according  to  the  argument,  accom- 
plished. 

Now,  I  apprehend  that  it  would  shake  the  course  of  proceeding  be- 
tween merchants,  as  sanctioned  by  decided  cases  (which  the  learned 
counsel  admitted  to  have  been  decided,  and  never  yet  to  have  been 
altered  or  reversed),  if  we  were  to  hold  that  the  assignment  of  the 
bill  of  lading,  the  goods  being  at  the  time  at  sea,  does  not  pass  the 
whole  and  complete  ownership  of  the  goods,  so  that  any  person  taking 
a  subsequent  bill  of  lading,  be  it  the  second  or  be  it  the  third,  must 
be  content  to  submit  to  the  loss  which  would  result  from  that  state 
of  facts.  I  apprehend  that  no  decision  can  be  found  to  the  effect  that 
any  person  taking  an  assignment  of  a  bill  of  lading,  knowing  that 
others  existed,  is  to  be  held  to  have  been  guilty  of  fraud  simply  from 
the  fact  of  his  so  acting. 

No  authority,  at  all  events,  has  been  cited  for  that  proposition.    And 
no  authority  has  been  cited  at  the  Bar  to  shew  that  the  transaction  is 
not  entire  and  complete  when  once  the  bill  of  lading  has  been  assigned, 
as  respects,  at  all  events,  goods  in  transitu,  whether  the  assignment  be 
by  mortgage  or  by  sale.    If  it  were  by  sale  other  considerations  would 
intervene  which  would  give  still  greater  efficacy  to  the  assignment  of 
the  goods  without  delivery  or  possession.     But  when  the  vessel  is  at 
sea  and  the  cargo  has  not  yet  arrived,  the  parting  with  the  bill  of  lad- 
ing is  parting  with  that  which  is  the  symbol  of  property,  and  which, 
for  the  piirpose  of  conveying  a  right  and  interest  in  the  property,  is 
I  the  property  itself.    It  appears  to  me  that  to  shake  any  conclusion  of 
j  that  kind  would  be  entirely  to  annihilate  the  course  of  mercantile  pro- 
i  cedure  which  has  existed  for  a  long  period  of  time — far  longer,  prob- 
I  ably,  than  I  can  at  this  rnoment  accurately  state. 


I 


174      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

That  being  so,  the  Judges  have  reasonably  assumed  that  proposition 
as  a  point  of  undeniable  law.  Then,  if  the  property  so  passes  when 
the  goods  are  at  sea,  the  whole  question  resolves  itself  into  this : 
What  is  the  effect  of  the  assignment  of  the  bill  of  lading  under  the 

/circumstances  of  this  case,  when  the  goods  were  not  at  sea  at  the  time 
when  the  interest  was  passed,  but  were  at  a  sufferance  wharf  in  the 
name  and  by  the  order  of  the  consignee,  Abraham,  who  represented 
the  original  consignees,  the  Souzas,  subject  to  the  stop-order  in  re- 
spect of  freight,  and  subject  to  the  stop-order  given  to  the  chartered 
bank. 

Now  the  circumstances  are  briefly  these  as  to  the  dates :  On  the  4th 
of  March,  the  goods  being  in  the  situation  I  have  described,  Abraham, 
the  person  who  has  been  guilty  of  this  fraud,  not  being  then  in  pos- 
session of  the  bills  of  lading  himself,  inasmuch  as  all  three  were  at 
that  time  in  possession  of  the  bankers,  applies  to  the  Plaintiff  Meyer- 
stein  for  a  loan ;  he  obtains  money  from  Meyerstein ;  he  first  draws 
a  cheque  to  meet  the  claim  at  the  bank,  a  cheque  provided  for  by  the 
moneys  advanced  to  him  by  Meyerstein,  and  then  he  obtains  the  three 
bills  of  lading  from  the  bank.  And  on  the  same  4th  of  March,  having 
these  three  bills  of  lading  for  a  few  minutes  or  a  few  hours  in  his  pos- 
session, he  does  nothing  with  them  in  the  way  of  claiming  possession 
of  the  goods ;  he  makes  no  use  of  them  for  that  purpose,  but  he  at 
once  pledges  two  of  these  bills  for  value  to  Meyerstein.     And  that 

i  pledge  being  so  completed,  Meyerstein  is  in  possession  of  these  two 
bills  with  no  other  charge  or  claim  whatever  upon  the  goods  they  rep- 
resented except  the  claim  for  freight,  the  freight  being  still  unsatisfied. 
The  mortgage  had  been  cleared  off,  and  he  had  become  the  owner  of 
the  property  by  this  transaction,  and  he  remained  the  owner  subject 
to  the  payment  of  the  freight. 

Then  afterwards,  fraudulently,  Abraham  enters  into  farther  deal- 
ings with  his  brokers.  His  brokers  are  aware  that  the  goods  have  ar- 
rived. They  obtain  a  partial  order  from  Abraham,  by  which  they 
are  enabled  to  obtain  a  sample  of  the  cotton  in  question ;  but  they  de- 
cline in  the  first  instance  to  make  him  any  advance.  He  proposes  to 
obtain  an  advance  on  the  bill  of  lading  simpliciter,  which  they  decline 
to  make.  But  they  were  afterwards  induced  to  make  the  advances 
when  they  had  seen  the  goods  themselves  at  the  wharf,  and  when  steps 
had  been  taken  by  Abraham  for  procuring  money  to  enable  him  to 
discharge  the  stop  which  existed  upon  the  goods  for  the  freight.  The 
stop  which  existed  in  respect  of  the  mortgage  had  been  already  dis- 
charged, and  the  property,  therefore,  became  apparently  at  his  disposal. 
The  Defendants,  being  ignorant  of  the  transaction  with  Meyerstein. 
on  the  11th  of  March  obtained  possession  of  the  goods,  and  on  the 
same  11th  of  March  Aleyerstein,  for  the  first  time,  discovers  the  fraud 
*  which  has  been  perpetrated  upon  himself.  When  he  wishes  to  obtain 
possession  of  the  goods  he  finds  that  they  have  been  removed.  And 
hence,  of  course,  a  contest  arises  between  the  two  parties. 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      175 

Then  in  that  state  of  things  the  question  that  arises  is  this :  The 
goods,  it  is  urged,  were  at  home  when  Abraham  was  empowered  by 
the  Act  of  Parhament  to  give  directions  that  the  goods  should  be 
placed  on  the  wharf  as  the  goods  of  him,  the  consignee.  But,  how- 
ever, the  question  arises  whether  these  goods  could  in  truth  be  said 
then  to  be  at  home.  It  is  said,  at  all  events  when  for  those  few  hours 
the  three  bills  of  lading  were  in  possession  of  Abraham,  and  the  goods 
were  at  home,  as  all  the  symbols  of  property  were  also  in  the  hands 
of  Abraham,  therefore  the  symbol  and  the  thing  symbolised  had  be- 
come united,  and  that,  in  truth,  the  whole  matter  might  be  said  to  be 
disposed  of.  Now  is  it  so?  Can  it  be  said  that  when  for  those  few 
hours  those  documents  were  in  the  hands  of  Abraham,  he  had  the 
control  and  proprietorship  of  the  goods?  Certainly  when  we  first 
gave  directions  for  their  being  warehoused  in  his  name  he  was  in  no 
sense  proprietor.  He  had  neither  the  bills  of  lading,  nor  had  he  dis- 
charged the  freight,  nor  had  he  in  any  other  way  put  himself  in  a 
situation  to  entitle  him  to  demand  the  goods. 

But  now,  having  the  bills  of  lading,  supposing  he  had  been  minded 
to  go  down  to  the  wharf  to  demand  the  goods,  what  would  have  hap- 
pened?   He  would  have  found  a  stop  placed  upon  the  goods  for  the 
freight.     And  what  would  have  been  his  position?     By  virtue  of  the 
5th  clause  of  the  particular  local  Act  (11  &  12  Vict.  c.  xviii)  referring 
to  this  subject,  he  would  have   found  that  he  could  not  obtain  any 
obedience  to  any  delivery  order  which  he  might  think  proper  to  give, 
and  that  he  could  not  obtain  any  warrant  of  delivery,  because  there 
had  been  placed  upon  the  goods  this  stop  for  the  freight.     The  Act 
expressly  enacts  that  when  a  stoppage  has  been  put  at  the  right  time^ 
namely,  before  the  issue  of  any  warrant  for  delivery,  or  the  acceptance 
of  any   order,  then   no  wharfinger   shall  be  authorized  to  issue  any 
warrant,  or  to  accept  any  order,  for  the  delivery  of  any  goods  thus 
subject  to  a  lien  for  freight.    Accordingly,  therefore,  the  goods  would 
not  have  been  delivered  to  him  had  he  made  use  of  those  bills  of  lad- 
ing instead  of  delivering  them  over  to  Meyerstein,  and  in  that  sense, 
undoubtedly,  the  goods  were  not  at  home  as  far  as  he  was  concerned. 
Then,  the  first  proposition  of  law  being  clear — that  an  indorsement 
of  the  bill  of  lading  carries  with  it  the  property  in  the  goods  when 
the  goods  are  at  sea,  the  next  proposition  of  law  that  we  have  to  con- 
sider is  this,  laid  down  by  all  the  Judges  who  have  delivered  their 
opinions  in  this  case,  and,  as  it  appears  to  me,  correctly  laid  down  by 
them.     It  is  stated  by  Mr.  Justice  Willes  in  his  very  elaborate  judg- 
[    ment,  in  which  he  says :   "I  think  the  bill  of  lading  remains  in  forcel 
j    at  least  so  long  as  complete  delivery  of  possession  of  the  goods  hast 
I    not  been  made  to  some  person  having  a  right  to  claim  them  under  it."l 
1    Mr.  Justice  Keating  says,  in  the  same  way,  that  he  considers  that  "there 
I   can  be  no  complete  delivery  of  goods  under  a  bill  of  lading  until  they 
i   have  come  to  the  hands  of  some  person  who  has  a  right  to  the  posses- 
j   sion  under  it."     And  afterwards,   in  the  Exchec[uer   Chamber,   Mr. 


// 


176      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Cll.  2 

Baron  Martin,  putting  the  case  on  somewhat  different  grounds,  says : 
"For  many  years  past  there  have  been  two  symbols  of  property  in 
goods  imported ;  the  one  the  bill  of  lading,  the  other  the  wharfinger's 
certificate  or  warrant.  Until  the  latter  is  issued  by  the  wharfinger  the 
former  remains  the  only  symbol  of  property  in  the  goods.  When, 
therefore,  Abraham  delivered  the  bill  of  lading  to  the  Plaintiff  on  the 
4th  of  March,  1865,  as  a  security  for  the  advance  then  made  to  him, 
such  delivery  amounted  to  a  valid  pledge  of  the  goods,  and  the  Plain- 
tiff thereby  acquired  a  right  to  hold  them  as  against  Abraham  and  all 
persons  claiming  title  thereto  under  him." 

The  principle  seems  to  be  the  same,  according  to  the  view  which 
Air.  Baron  ]\Iartin  takes,  which  is  this :  There  has  been  adopted,  for 
the  convenience  of  mankind,  a  mode  of  dealing  with  property  the  pos- 
session of  which  cannot  be  immediately  delivered,  namely,  that  of 
dealing  with  symbols  of  the  property.  In  the  case  of  goods  which  are 
at  sea  being  transmitted  from  one  country  to  another,  you  cannot  de- 
liver actual  possession  of  them,  therefore  the  bill  of  lading  is  consid- 
ered to  be  a  symbol  of  the  goods,  and  its  delivery  to  be  a  delivery  of 
them.  When  they  have  arrived  at  the  dock,  until  they  are  delivered 
to  some  person  who  has  the  right  to  hold  them  the  bill  of  lading  still 
remains  the  only  symbol  that  can  be  dealt  with  by  way  of  assignment, 
or  mortgage,  or  otherwise.  As  soon  as  delivery  is  made,  or  a  warrant 
for  delivery  has  been  issued,  or  an  order  for  delivery  accepted  (which 
in  law  would  be  equivalent  to  delivery),  then  those  symbols  replace 
the  symbol  which  before  existed.  Until  that  time  bills  of  lading  are 
effective  representations  of  the  ownership  of  the  goods,  and  their 
I  force  does  not  become  extinguished  until  possession,  or  what  is  equiv- 
falent  in  law  to  possession,  has  been  taken  on  the  part  of  the  person 
having  a  right  to  demand  it. 

It  appears  to  me  that  is  the  legal  sense  of  the  transaction.  The 
shipowner  contracts  that  he  will  deliver  the  goods  on  the  payment  of 
freight.  He  discharges  his  contract  when  he  delivers  the  goods.  But, 
unless  he  chooses  to  waive  his  rights,  he  is  not  bound  so  to  deliver 
the  goods,  or  to  hand  them  over  to  the  person  who  is  the  original  con- 
signee to  whom  he  has  .contracted  to  make  the  delivery,  until  all  the 
conditions  on  which  he  contracted  to  deliver  them  are  fulfilled.  One 
of  those  conditions  is,  that  the  freight  should  be  paid;  and  until  the 
freight  has  been  paid  he  is  not  bound  to  make  the  delivery. 

Mr.  Justice  W^illes  explains  what  is  the  eft'ect  of  these  various  Acts 
of  Parliament.  These  Acts  of  Parliament  are  not  intended  to  deprive 
J  the  shipowner  of  the  right  which  he  has  to  say  that  he  will  not  part 
with  the  possession  of  the  goods  until  freight  is  paid.  Accordingly, 
the  local  Act  first  enacted  that  there  should  be  a  power  on  the  part 
of  the  shipowner  to  relieve  himself  from  the  responsibility,  which 
might  be  extremely  inconvenient  to  all  parties,  of  keeping  the  goods  on 
board,  when  either  the  consignee  was  not  ascertained,  or  when,  if  as- 
certained, there  was  some  laches  on  his  part  in  demanding  the  deliv- 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      177 

ery  of  the  goods.  In  such  a  case  the  shipowner,  by  depositing  them 
in  a  warehouse,  placed  them  in  such  a  condition  that  if  their  owner 
could  not  be  ascertained  the  goods  should  be  considered  as  if  they 
were  still  at  sea,  in  the  absolute  possession  of  the  master  to  all  intents 
and  purposes.  But  if  the  owner  of  the  goods  could  be  ascertained,  and 
the  only  question  was  the  question  of  freight,  still  the  Act  of  Parlia- 
ment provided  that  the  shipowner  should  be  protected,  that  he  should 
not  be  bound  to  hand  over  the  goods  absolutely,  but  that  he  should 
hand  them  over  sub  modo,  with  the  full  right  of  retaining  his  lien  on 
the  goods  themselves,  and  with  the  right  of  preventing  them  being 
dealt  with  or  removed  until  that  lien  should  be  satisfied. 

The  legal  effect  of  the  proceeding  is  this,  that  the  proprietor  or  con- 
signee may  require  the  goods  to  be  landed  at  a  wharf,  and  to  be  ware- 
housed in  his  name,  but  subject  to  this  condition,  that  the  shipowner 
still  retains  his  interest  in  the  cargo  until  his  charge  for  freight  has 
been  defrayed.  If  he  gives  notice  of  that  charge  prior  to  any  act  being 
done  by  which  the  ownership  of  the  goods  is  changed,  prior  to  the  ac- 
ceptance of  an  order  for  delivery,  and  prior  to  the  issue  of  a  warrant 
for  delivery,  then  the  shipowner's  lien  holds  and  attaches  itself  to 
those  goods,  and  the  goods  cannot  be  removed ;  the  bills  of  lading 
cannot  be  considered  as  having  been  fully  spent  or  exhausted,  because 
there  remains  an  important  part  of  the  contract  unfulfilled  on  the  part 
of  the  consignee,  namely,  payment  of  the  freight  in  respect  of  which 
the  contract  was  entered  into. 

That  seems  to  me  to  be  the  whole  basis  of  the  judgment  at  which 
the  learned  Judges  arrived  in  the  Courts  below,  and  which,  as  I  before 
stated,  was  their  unanimous  conclusion.  But  against  it  several  objec- 
tions have  been  urged.  It  is  said  that  a  frightful  amount  of  fraud 
may  be  perpetrated  if  persons  are  allowed  to  deal  in  this  way  with 
bills  of  lading  drawn  in  sets,  if  you  allow  efficacy  to  be  given  to  the  first 
assignment  of  one  of  these  bills,  to  the  detriment  of  persons  who  may 
take,  for  value,  subsequent  assignments  of  the  others.  x^U  that  we 
can  say  is,  that  such  has  been  the  law  hitherto,  and  that  the  conse- 
quences of  the  supposed  evil,  whatever  they  may  be,  have  not  been 
considered  to  be  such  as  to  counter-balance  the  great  advantages  and 
facilities  afforded  by  the  transfer  of  bills  of  lading.  There  is  no  au- 
thority or  reason  for  holding  that  the  person  who  first  obtains  the 
assignment  of  a  bill  of  lading,  and  has  given  value  for  it,  shall  not 
acquire  the  legal  ownership  of  the  goods  it  represents.  It  seems  to 
be  required  by  the  exigencies  of  mankind.  It  may  be  a  satisfaction 
to  be  told  by  Mr.  Justice  Willes  (though  it  is  a  matter  upon  which  I 
put  no  reliance),  that  other  nations  concur  with  us  in  holding  that 
(whatever  inconveniences  there  may  be  attending  it),  the  person  who 
gets  the  first  assignment  for  value  is  the  person  to  be  preferred. 

The  reasoning  of  the  learned  Judges  in  this  case  establishes  clearly 
these  two  propositions :  First,  that  the  holder  of  the  first  assignment 
Wood  w.  Sales — 12 


n 


178      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Cll.  2 

for  value  obtains  a  priority  over  those  who  obtain  possession  of  the 
other  bills.  And,  secondly  (following  the  reasoning  of  Mr.  Justice 
Willes),  "The  wharfinger  under  these  circumstances  was,  at  the  low- 
est, the  common  agent  for  the  shipowner  and  for  the  consignee  or 
holder  of  the  bill  of  lading — agent  for  the  consignee  or  holder,  upon 
his  producing  the  bill  of  lading  shewing  that  he  was  entitled  to  the 
goods,  and  upon  his  paying  the  freight,  to  transfer  the  goods  into  his 
name,  and  to  deliver  them  to  him,  or  give  him  a  warrant  for  them — 
and  agent  for  the  shipowner  to  retain  possession  of  the  goods  and  to 
permit  no  one  to  exercise  any  control  over  them  until  the  claim  for 
freight  had  been  satisfied.  During  this  period,  therefore,  the  bill  of 
lading  would  not  only,  according  to  the  usage,  and  for  the  satisfac- 
tion of  the  wharfinger  that  he  was  delivering  to  the  right  person,  be 
a  symbol  of  possession,  and  practically  the  key  of  the  warehouse,  but 
it  would,  so  far  at  least  as  the  shipowner  was  concerned,  retain  its 
full  and  complete  operation  as  a  bill  of  lading,  there  having  been  no 
complete  delivery  of  possession  of  the  goods."  The  other  learned 
Judges  take  the  same  view;  and  I  apprehend  that  the  correct  view  in 
substance  is  this — ^that  this  being  the  possession  of  the  wharfinger,  the 
bill  of  lading  remains  in  force  so  long  as  complete  delivery  and  pos- 
session has  not  been  given  to  some  person  having  the  right  to  claim 
such  delivery  and  possession. 

As  to  the  argument  founded  on  the  possibility  of  fraud,  I  agree  very 
much  with  one  of  the  learned  Judges,  Mr.  Justice  Willes,  who  says, 
that  as  to  any  argument  upon  that  subject,  "all  arguments  founded 
upon  the  notion  that  the  Court  is  to  pronounce  a  judgment  in  this 
case  which  will  protect  those  who  deal  with  fraudulent  people,  are 
altogether  beside  the  facts  of  this  case,  and  foreign  from  transactions 
of  this  nature."  I  am  afraid  that  the  protection  of  parties  against 
fraud  is  a  matter  of  difficulty  with  which  the  Legislature  must  cope, 
as  far  as  it  can  possibly  do  so,  from  time  to  time,  when  frauds  of  a 
serious  character  are  practised;  but  the  Courts  of  Law,  which  have 
to  administer  the  law  as  it  exists,  cannot  alter  their  course  of  proceed- 
ing because  those  who  ought  to  do  that  which  is  right  and  just  to 
their  neighbours  find  means  of  defrauding  them  in  spite  of  all  the  pro- 
tection which  the  law  may  have  thrown  around  the  innocent  holders 
of  property.  Judicature  has  no  power  to  interfere  with  the  course  of 
proceeding  in  such  cases.  It  must  be  left  to  the  Legislature  alone. 
But,  on  the  other  hand,  we  should  consider  that  our  mercantile  laws, 
which  are  founded  on  long  usage,  have  been  found  to  work  well  for 
the  general  convenience  of  those  engaged  in  those  large  adventures 
which  are  familiar  to  the  enterprise  of  this  country,  and  that  although'] 
occasional  inconvenience  may  have  been  caused  by  the  fraudulent  be- 
havior of  some  parties,  yet  these  laws  have,  upon  the  whole,  been  felt 
to  operate  beneficially. 

The  principles  which,  as  I  have  stated,  form  the  foundation  of  the 
judgment  in  the  present  case  are,  that  the  parting  with  the  symbol  of 


I 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      179 

property  the  possession  of  which  cannot  be  deHvered  is  the  parting  I  ( 
with  the  property  itself ;  and  that  persons  who  have  not  a  complete 
ownership  and  possession  of  the  property  cannot  be  said  to  have  such 
a  title  to  that  property  as  to  divest  the  operation  of  the  symbol  to  give 
a  title  to  it,  mitil  something  occurs  which  brings  the  symbol  and  the 
property  itself  into  contact — and  that  for  the  purpose  of  so  bringing 
the  property  and  the  symbol  into  contact,  there  must  be  a  complete 
concurrence  of  title  in  the  person  who  holds  the  symbol  and  the  per- 
son who  has  the  right  to  demand  the  property ;  and  until  that  happens 
the  symbol,  as  in  the  present  case,  has  not  exhausted  its  office. 

I  am,  therefore,  of  opinion  that  the  learned  Judges  have  come  to  the 
right  conclusion,  and  I  have  to  move  your  Lordships  to  affirm  the  two 
decisions  which  are  complained  of  in  this  appeal.''^ 


ANCHOR  MILL  CO.  v.  BURLINGTON,  C.  R.  &  N.  RY.  CO. 

(Supreme  Court  of  Iowa,  1S97.     102  Iowa,  202,  71   N.   W.  255.) 

Prior  to  October  6,  1894,  the  Anchor  Mill  Company,  of  Cedar 
Rapids,  Iowa,  had  contracted  with  the  Lacey  Grain  Company  of 
Sioux  Falls,  S.  D.,  for  the  purchase  of  4,000  bushels  of  wheat,  which 
the  latter  company  began  shipping  about  September  1st,  and  on  that 
day  wrote  to  the  plaintiff:  "As  cars  of  wheat  are  liable  to  arrive 
there  ahead  of  draft,  we  inclose  you  an  order  on  the  agent  to  deliver 
you  grain  billed  to  us  without  presentation  of  bill  of  lading."  The 
following  is  the  order  inclosed:  "Sioux  Falls,  So.  Dak.,  Sept.  1, 
1894.  Agent  B.,  C.  R.  &  N.  Ry.,  Cedar  Rapids,  Iowa— Dear  Sir: 
Please  deliver  all  grain  billed  to  us  at  Cedar  Rapids,  Iowa,  to  the 
Anchor  ]\Iill  Co.,  without  presentation  of  bill  of  lading.  Yours,  truly. 
The  Lacey  Grain  Co."  This  order  was  filed  with  the  agent  of  the 
defendant  railroad  company  at  Cedar  Rapids,  and  the  wheat,  prior  to 
that  in  controversy,  delivered  to  the  plaintiff  in  pursuance  thereof. 

The  car  load  involved  in  this  action  arrived  at  Cedar  Rapids  Oc- 
tober 5,  1894,  at  5:10  p.  m.,  and  was  placed  by  the  defendant  on  the 
side  track  on  Fourth  avenue.  Hershey,  an  employe  of  the  defendant, 
whose  duty  it  was  to  look  after  the  cars,  found  this  car  on  such  track 
at  about  7  a.  m.,  October  6,  and  reported  it  there  to  Fox,  chief  clerk 
of  the  local  freight  department  of  defendant,  who  notified  the  plaintiff 
before  9  a.  m.  that  the  car  had  been  placed  on  the  side  track  for  it. 
All  cars  of  wheat  were  placed  there  at  the  request  of  plaintiff,  as  the 
most  convenient  place  for  unloading.  On  the  10th  of  October  the  de- 
fendant received  notice  from  the  Sioux  Falls  National  Bank  that  it 
held  the  bill  of  lading,  and  claimed  the  wheat,  and  thereupon  notified 

41  Concurring  opinions  were  delivered  by  Lords  Chelmsford,  Westbury,  and 
Colonsay. 


180      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

the  plaintiff  not  to  take  it.     The  plaintiff,  however,  took  a  part  of 
the  wheat,  and  defendant  then  removed  the  car  back  to  its  yards. 

Plaintiff  thereupon  began  this  action,  claiming  to  be  the  owner 
thereof.  The  wheat  was  shipped  from  Trosky,  Minn.,  to  the  Lacey 
Grain  Company,  consignee,  October  2,  1894.  The  bill  of  lading  was 
in  the  usual  form,  and  on  the  back  was  indorsed :  "Deliver  to  Anchor 
]\Iill  Co.  The  Lacey  Grain  Co."  During  banking  hours,  October  6, 
1894,  and  about  2  p.  m.,  the  Sioux  Falls  National  Bank  bought  a  draft 
of  $325  of  the  Lacey  Grain  Company,  and  the  latter  transferred  to 
said  bank  by  delivery  the  bill  of  lading  of  this  car  load  of  wheat. 
The  bank  filed  its  petition  of  intervention,  claiming  the  wheat  under 
such  bill  of  lading.  After  all  the  evidence  was  introduced,  the  court, 
on  motion  of  intervener,  directed  the  jury  to  return  a  verdict  finding 
the  Sioux  Falls  National  Bank  entitled  to  the  possession  of  the  prop- 
erty in  controversy,  and  afterwards  rendered  judgment  on  such  ver- 
dict.    Plaintiff  appeals.     Reversed. 

ILadd,  J.*"  The  main  question  to  be  determined  in  this  case  is 
whether  the  car  load  of  wheat  had  been  delivered  to  the  plaintiff'  be- 
fore the  bill  of  lading  was  transferred  to  intervener.  There  is  little 
or  no  conflict  in  the  evidence.     *     *     * 

We  think  the  delivery  of  the  car  load  of  wheat  to  the  Anchor 
Mill  Company  was  made  before  9  a.  m.,  October  6,  1894;  and,  hav- 
ing paid  therefor,  it  became  the  absolute  owner  of  the  wheat  so  de- 
livered before  the  purchase  of  the  bill  of  lading  by  the  intervener. 

2.  It  is  insisted  by  appellee  that  the  wheat  could  only  be  delivered  by 
transfer  of  the  bill  of  lading.     Garden  Grove  Bank  v.  Humeston  & , 
S.  Ry.  Co.,  67  Iowa,  533.  25  N.  W.  761,  is  relied  on.     That  the  bill' 
of   lading  represents   the   property   while  being  transported,   and   its 
assignment    operates    as    a    symbolical    delivery    thereof,    cannot    be 
doubted.    Weyand  v.  Railway  Co.,  7':>  Iowa,  579,  39  X.  W.  899,  1  L. 
R.  A.  650,  9  Am.  St.  Rep.  504;    Ayres,  Weatherwax  &  Reed  Co. 
V.  Dorsey  Produce  Co.,  101  Iowa,   141,  70  N.  W.   Ill,  63  Am.  St. 
I  Rep.  376.     The  bill  of  lading,  however,  is  not  a  negotiable  instrument, 
I  and  its  transfer  carries  with  it  only  such  interest  in  the  property  as 
/  the  assignor  might  transfer  by  actual  delivery.     Certainly,  the  assign- 
ment of  the  bill  of  lading  is  not  more  eff'ective  in  transferring  title 
than  manual  change  of  possession, 

I  The  intervener  obtained  no  better  title  to  the  wheat  than  the  Lacey 
Grain  Company  had  when  it  parted  with  the  bill  of  lading.  Haas  v. 
Railroad  Co.,  81  Ga.  792,  7  S.  E.  629;  Tison  v.  Howard,  't^I  Ga. 
410;  Shaw  v.  Railroad  Co.,  101  U.  S.  557,  25  L.  Ed.  892.  Prior 
to  that  time  the  railroad  company  had  fully  performed  its  duties  as 
common  carrier  by  delivering  the  wheat  to  the  plaintiff  in  pursuance 
of  the  order  of  the  consignee  and  the  indorsement  on  the  back  of 
such  bill.    The  title  to  the  wheat  had  passed  to  the  plaintiff',  who  had 

42  Part  of  the  opinion  is  omitted. 


Sec.  S)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      181 

already  paid  for  it.  The  bill  of  lading  had  served  the  purposes  of 
its  existence,  and  was  no  longer  a  thing  of  value.  Such  a  rule  only 
requires  that  the  purchaser  of  a  bill  of  lading  know  the  title  to  the 
property  of  the  person  from  whom  he  buys.  This  is  the  general  rule, 
and  we  know  of  no  reason  for  making  an  exception  in  favor  of  one 
claiming  possession  by  constructive  instead  of  actual  delivery  of  prop- 
erty. 

It  follows  that  the  district  court  erred  in  directing  a  verdict  in  favor 
of  the  intervener,  and  its  judgment  must  be  reversed. 


SHAW    V.    NORTH    PENNSYLVANIA    R.    CO. 
(Supreme  Court  of  the  Uuited  States,  1S79.     101  U.   S.  557,  25  L.  Ed.  892.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Pennsylvania. 

This  is  an  action  of  replevin  brought  by  the  Merchants'  National 
Bank  of  St.  Louis,  Alissouri,  against  Shaw  &  Esrey,  of  Philadelphia, 
Pennsylvania,  to  recover  possession  of  certain  cotton,  marked  "VV  D  I." 
One  hundred  and  forty-one  bales  thereof  having  been  taken  posses- 
sion of  by  the  marshal  were  returned  to  the  defendants  upon  their 
entering  into  the  proper  bond.  On  November  H,  1874,  Norvell  & 
Co.,  of  St.  Louis,  sold  to  the  bank  their  draft  for  $n,947.43  on  M. 
Kuhn  &  Brother,  of  Philadelphia,  and,  as  collateral  security  for  the 
payment  thereof  indorsed  in  blank  and  delivered  to  the  bank  an , 
original  bill  of  lading  for  one  hundred  and  seventy  bales  of  cotton 
that  day  shipped  to  the  last-named  city.  The  duplicate  bill  of  lading 
was  on  the  same  day  forwarded  to  Kuhn  &  Brother  by  Norvell  & 
Co.  The  Merchants"  Bank  forwarded  the  draft,  with  the  bill  of 
lading  thereto  attached,  to  the  Bank  of  North  America.  On  Novem- 
ber 14,  the  last-named  bank  sent  the  draft — the  original  bill  of  lading 
still  being  attached  thereto — to  Kuhn  &  Brother  by  its  messenger  for  , 
acceptance.  The  messenger  presented  the  draft  and  bill  to  one  of  ' 
the  members  of  that  firm,  who  accepted  the  former,  but,  without  be- 
ing detected,  substituted  the  duplicate  for  the  original  bill  of  lading. 

On  the  day  upon  which  this  transaction  occurred,  Kuhn  &  Brother 
indorsed  the  original  bill  of  lading  to  ]\Iiller  &  Brother,  and  received 
thereon  an  advance  of  $8,500.  Within  a  few  days  afterwards,  the 
cotton,  or  rather  that  portion  of  it  which  is  in  controversy,  was, 
through  the  agency  of  a  broker,  sold  by  sample  with  the  approval 
of  Kuhn  &  Brother  to  the  defendants,  who  were  manufacturers  at 
Chester,  Pennsylvania.  The  bill  of  lading,  having  been  deposited  on 
the  same  day  with  the  North  Pennsylvania  Railroad  Company,  at 
whose  depot  the  cotton  was  expected  to  arrive,  it  was  on  its  arrival 
delivered  to  the  defendants. 


182      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

The  fact  that  the  Bank  of  North  America  held  the  duplicate  in- 
stead of  the  original  bill  of  lading  was  discovered  for  the  first  time 
on  the  9th  of  December,  by  the  president  of  the  plaintiff,  who  had 
gone  to  Philadelphia  in  consequence  of  the  failure  of  Kuhn  &  Brother 
and  the  protest  of  the  draft. 

The  defendants  below  contended  that  the  bill  of  lading  was  ne- 
/gotiable  in  the  ordinary  sense  of  that  word ;  that  Miller  &  Brother 
I  had  purchased  it  for  value  in  the  usual  course  of  business,  and  that 
'  they  thereby  had  acquired  a  valid  title  to  the  cotton,  which  was  not 
impaired  by  proof  that  Kuhn  &  Brother  had  fraudulently  got  posses- 
sion of  the  bill ;  but  the  court  left  it  to  the  jury  to  determine — 

1st,  Whether  there  was  any  negligence  of  the  plaintiff  or  its  agents 
in  parting  with  possession  of  the  bill  of  lading. 

2d,  Whether  Miller  &  Brother  knew  any  fact  or  facts  from  which 
they  had  reason  to  believe  that  the  bill  of  lading  was  held  to  secure 
payment  of  an  outstanding  draft. 

The  jury  having  found  the  first  question  in  the  negative  and  the 
second  in  the  affirmative,  further  found  "the  value  of  the  goods 
eloigned"  to  be  $7,015.97,  assessed  the  plaintiff's  damages  at  that 
sum  with  costs,  for  which  amount  the  court  entered  a  judgment. 
Shaw  &  Esrey  thereupon  sued  out  this  writ  of  error. 

The  remaining  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Justice  Strong.^^  The  defendants  below,  now  plaintiffs  in 
error,  bought  the  cotton  from  IMiller  &  Broflier  by  sample,  through 

)a  cotton  broker.  Xo  bill  9f  lading  or  other  written  evidence  of  title 
in  their  vendors  was  exhibited  to  them.  Hence,  they  can  have  no 
other  or  better  title  than  their  vendors  had. 

The  inquiry,  therefore,  is,  what  title  had  Miller  &  Brother  as 
against  the  bank,  wdiich  confessedly  was  the  owner,  and  which  is  still 
the  owner,  tmless  it  has  lost  its  ownership  by  the  fraudulent  act  of 
r  Kuhn  &  Brother.  The  cotton  was  represented  by  the  bill  of  lading 
given  to  Norvell  &  Co.,  at  St.  Louis,  and  by  them  indorsed  to  the 
bank,  to  secure  the  payment  of  an  accompanying  discounted  time- 
draft.  That  indorsement  vested  in  the  bank  the  title  to  the  cotton, 
as  well  as  to  the  contract.  While  it  there  continued,  and  during  the 
transit  of  the  cotton  from  St.  Louis  to  Philadelphia,  the  indorsed  bill 
of  lading  was  stolen  by  one  of  the  firm  of  Kuhn  &  Brother,  and 
by  them  indorsed  over  to  ]\Iiller  &  Brother,  for  an  advance  of  $8,500. 
The  jury  has  found,  however,  that  there  was  no  negligence  of  the 
bank,  or  of  its  agents,  in  parting  with  possession  of  the  bill  of  lad- 
ing, and  that  Miller  &  Brother  knew  facts  from  which  they  had  rea- 
son to  believe  it  was  held  to  secure  the  payment  of  an  outstanding 
draft ;  in  order  words,  that  Kuhn  &  Brother  were  not  the  lawful  own- 
ers of  it,  and  had  no  right  to  dispose  of  it.^ 

It   is   therefore   to  be   determined   whether   Miller    &   Brother,   by 

4  3  Part  of  the  opinion  is  omitted. 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  TUERBOP      183 

taking  the  bill  of  lading  from  Kuhn  &  Brother  under  these  circum- 
stances, acquired  thereby  a  good  title  to  the  cotton  as  against  the 
bank. 

In  considering  this  question,  it  does  not  appear  to  us  necessary  to 
inquire  whether  the  effect  of  the  bill  of  lading  in  the  hands  of  Miller 
&  Brother  is  to  be  determined  by  the  law  of  Missouri,  where  the  bill 
was  given,  or  by  the  law  of  Pennsylvania,  where  the  cotton  was  de- 
livered. The  statutes  of  both  states  enact  that  bills  of  lading  shall  1 1 
be  negotiable  by  indorsement  and  delivery.  The  statute  of  Penn-'' 
sylvania  declares  simply,  they  "shall  be  negotiable  and  may  be  trans- 
ferred by  indorsement  and  delivery ;"  while  that  of  Missouri  enacts 
that  "they  shall  be  negotiable  by  written  indorsement  thereon  and  de- 
livery, in  the  same  manner  as  bills  of  exchange  and  promissory 
notes."  There  is  no  material  difference  between  these  provisions. 
Both  statutes  prescribe  the  manner  of  negotiation;  i.  e.,  by  indorse- 
ment and  delivery.  Neither  undertakes  to  define  the  effect  of  such 
a  transfer. 

We  must,  therefore,  look  outside  of  the  statutes  to  learn  what  they 
mean  by  declaring  such  instruments  negotiable.  What  is  negotiabil- 
ity? It  is  a  technical  term  derived  from  the  usage  of  merchants  and 
bankers,  in  transferring,  primarily,  bills  of  exchange  and,  afterwards, 
promissory  notes.  At  common  law  no  contract  was  assignable,  so 
as  to  give  to  an  assignee  a  right  to  enforce  it  by  suit  in  his  own  name. 
To  this  rule  bills  of  exchange  and  promissory  notes,  payable  to  order 
or  bearer,  have  been  admitted  exceptions,  made  such  by  the  adoption 
of  the  law  merchant.  They  may  be  transferred  by  indorsement  and 
delivery,  and  such  a  transfer  is  called  negotiation.  It  is  a  mercantile 
business  transaction,  and  the  capability  of  being  thus  transferred,  so 
as  to  give  to  the  indorsee  a  right  to  sue  on  the  contract  in  his  own  f 
name,  is  what  constitutes  negotiability.  The  term  "negotiable"  ex-  | 
presses,  at  least  primarily,  this  mode  and  effect  of  a  transfer. 

In  regard  to  bills  and  notes,  certain  other  consequences  generally, 
though  not  always,  follow.  Such  as  a  liability  of  the  indorser,  if  de- 
mand be  duly  made  of  the  acceptor  or  maker,  and  seasonable  notice 
of  his  default  be  given.  So  if  the  indorsement  be  made  for  value 
to  a  bona  fide  holder,  before  the  maturity  of  the  bill  or  note,  in  due 
course  of  business,  the  maker  or  acceptor  cannot  set  up  against  the 
indorsee  any  defence  which  might  have  been  set  up  against  the 
payee,  had  the  bill  or  note  remained  in  his  hands. 

So,  also,  if  a  note  or  bill  of  exchange  be  indorsed  in  blank,  if  pay- 
able to  order,  or  if  it  be  payable  to  bearer,  and  therefore  negotiable 
by  delivery  alone,  and  then  be  lost  or  stolen,  a  bona  fide  purchaser 
for  value  paid  acquires  title  to  it,  even  as  against  the  true  owner. 
This  is  an  exception  from  the  ordinary  rule  respecting  personal  prop- 
erty. But  none  of  these  consequences  are  necessary  attendants  or 
constituents  of  negotiability,  or  negotiation.  That  may  exist  without 
them.     A  bill  or  note  past  due  is  negotiable,  if  it  be  payable  to  order, 


184      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

or  bearer,  but  its  indorsement  or  delivery  does  not  cut  off  the  de- 
fences of  the  maker  or  acceptor  against  it,  nor  create  such  a  contract 
as  resuhs  from  an  indorsement  before  maturity,  and  it  does  not  give 
to  the  purchaser  of  a  lost  or  stolen  bill  the  rights  of  the  real  owner. 

It   does  not   necessarily   follow,   therefore,   that   because  a    statute 
Ihas  made  bills  of  lading  negotiable  by  indorsement  and  delivery,  all 
I  these  consequences  of  an  indorsement  and  delivery  of  bills  and  notes 
(before  maturity  ensue  or  are  intended  to  result  from  such  negotia- 
tion. 

Bills  of  exchange  and  promissory  notes  are  exceptional  in  their 
character.  They  are  representatives  of  money,  circulating  in  the 
commercial  world  as  evidence  of  money,  "of  which  any  person  in  law- 
ful possession  may  avail  himself  to  pay  debts  or  make  purchases  or 
make  remittances  of  money  from  one  country  to  another,  or  to  re- 
mote places  in  the  same  country.  Hence,  as  said  by  Story,  J.,  it 
has  become  a  general  rule  of  the  commercial  world  to  hold  bills  of 
exchange,  as  in  some  sort,  sacred  instruments  in  favor  of  bona  fide 
holders  for  a  valuable  consideration  without  notice."  Without  such 
a  holding  they  could  not  perform  their  peculiar  functions.  It  is  for 
this  reason  it  is  held  that  if  a  bill  or  note,  indorsed  in  blank  or  pay- 
able to  bearer,  be  lost  or  stolen,  and  be  purchased  from  the  finder 
or  thief,  without  any  knowledge  of  want  of  ownership  in  the  vendor, 
the  bona  fide  purchaser  may  hold  it  against  the  true  owner.  He  may 
hold  it  though  he  took  it  negligently,  and  when  there  were  suspicious 
circumstances  attending  the  transfer. 

Nothing  short  of  actual  'or  constructive  notice  that  the  instrument 
is  not  the  property  of  the  person  who  offers  to  sell  it ;  that  is,  nothing 
short  of  mala  fides  will  defeat  his  right.  The  rule  is  the  same  as  that 
which  protects  the  bona  fide  indorser  of  a  bill  or  note  purchased  for 
value  from  the  true  owner.  The  purchaser  is  not  bound  to  look  be- 
yond the  instrument.  Goodman  v.  Harvey,  4  Ad.  &  E.  870;  Goodman 
V.  Simonds,  20  How.  343,  15  L.  Ed.  934;  Murray  v.  Lardner,  2  Wall. 
110,  17  L.  Ed.  857;  Matthews  v.  Poythress,  4  Ga.  287.  The  rule 
was  first  applied  to  the  case  of  a  lost  bank-note  (Miller  v.  Race.  1 
Burr.  452),  and  put  upon  the  ground  that  the  interests  of  trade,  the 
usual  course  of  business,  and  the  fact  that  bank-notes  pass  from  hand 
to  hand  as  coin,  require  it.  It  was  subsequently  held  applicable  to 
merchants'  drafts,  and  in  Peacock  v.  Rhodes  (2  Doug.  633),  to  bills 
and  notes,  as  coming  within  the  same  reason. 

The  reason  can  have  no  application  to  the  case  of  a  lost  or  stolen 
bill  of  lading.  The  function  of  that  instrument  is  entirely  different 
from  that  of  a  bill  or  note.  It  is  not  a  representative  of  money,  used 
for  transmission  of  money,  or  for  the  payment  of  debts  or  for  pur- 
Ichases.  It  does  not  pass  from  hand  to  hand  as  bank-notes  or  coin. 
/it  is  a  contract  for  the  performance  of  a  certain  duty.  True,  it  is 
I  a  symbol  of  ownership  of  the .  goods  covered  by  it, — a  representative 
of  those  goods.     But  if  the  goods  themselves  be  lost  or  stolen,  no  sale 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      185 

of  them  by  the  finder  or  thief,  though  to  a  bona  fide  purchaser  for 
value,  will  divest  the  ownership  of  the  person  who  lost  them,  or  from 
whom  they  were  stolen.  Why  then  should  the  sale  of  the  symbol  or 
mere  representative  of  the  goods  have  such  an  effect?  It  may  be 
that  the  true  owner  by  his  negligence  or  carelessness  may  have  put 
it  in  the  power  of  a  finder  or  thief  to  occupy  ostensibly  the  position 
of  a  true  owner,  and  his  carelessness  may  estop  him  from  asserting 
his  right  against  a  purchaser  who  has  been  misled  to  his  hurt  by  that 
carelessness.  But  the  present  is  no  such  case.  It  is  established  by  the 
verdict  of  the  jury  that  the  bank  did  not  lose  its  possession  of  the  bill 
of  lading  negligently.  There  is  no  estoppel,  therefore,  against  the 
bank's  right. 

Bills  of  lading  are  regarded  as  so  much  cotton,  grain,  iron,  or  oth- 
er articles  of  merchandise.  The  merchandise  is  very  often  sold  or 
pledged  by  the  transfer  of  the  bills  which  cover  it.  They  are,  in  com- 
merce, a  very  different  thing  from  bills  of  exchange  and  promissory 
notes,  answering  a  different  purpose  and  performing  different  func- 
tions. It  cannot  be,  therefore,  that  the  statute  which  made  them 
negotiable  by  indorsement  and  delivery,  or  negotiable  in  the  same  man- 
ner as  bills  of  exchange  and  promissory  notes  are  negotiable,  intend- 
ed to  change  totally  their  character,  put  them  in  all  respects  on  the 
footing  of  instruments  which  are  the  representatives  of  money,  and 
charge  the  negotiation  of  them  with  all  the  consequences  which  usual- 
ly attend  or  follow  the  negotiation  of  bills  and  notes.  Some  of  these 
consequences  would  be  very  strange  if  not  impossible.  Such  as  the 
liability  of  indorsers,  the  duty  of  demand  ad  diem,  notice  of  non- 
delivery by  the  carrier,  &c.,  or  the  loss  of  the  owner's  property  by 
the  fraudulent  assignment  of  a  thief.  If  these  were  intended,  surely 
the  statute  would  have  said  something  more  than  merely  make  them 
negotiable  by  indorsement. 

No  statute  is  to  be  construed  as  altering  the  common  law,  farther 
than  its  words  import.  It  is  not  to  be  construed  as  making  any  in- 
novation upon  the  common  law  which  it  does  not  fairly  express.  Es- 
pecially is  so  great  an  innovation  as  would  be  placing  bills  of  lading 
on  the  same  footing  in  all  respects  with  bills  of  exchange  not  to  be 
inferred  from  words  that  can  be  fully  satisfied  without  it.  The  law 
has  most  carefully  protected  the  ownership  of  personal  property, 
other  than  money,  against  misappropriation  by  others  than  the  own- 
er, even  when  it  is  out  of  his  possession.  This  protection  would  be 
largely  withdrawn  if  the  misappropriation  of  its  symbol  or  represen- 
tative could  avail  to  defeat  the  ownership,  even  when  the  person  who 
claims  under  a  misappropriation  had  reason  to  believe  that  the  per- 
son from  whom  he  took  the  property  had  no  right  to  it. 

We  think,  therefore,  that  the  rule  asserted  in  Goodman  v.  Harvey, 
Goodman  v.  Simonds,  Murray  v.  Lardner  (supra),  and  in  Phelan  v. 
Moss,  67  Pa.  59,  5  Am.  Rep.  402,  is  not  applicable  to  a  stolen  bill  of 
lading.     At  least  the  purchaser  of  such  a  bill,  with  reason  to  believe 


186      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

that  his  vendor  was  not  the  owner  of  the  bill,  or  that  it  was  held  to 
secure  the  payment  of  an  outstanding  draft,  is  not  a  bona  fide  pur- 
chaser, and  he  is  not  entitled  to  hold  the  merchandise  covered  by  the 
bill  against  its  true  owner.  In  the  present  case  there  was  more  than 
mere  negligence  on  the  part  of  jMiller  &  Brother,  more  than  mere 
reason  for  suspicion.  There  was  reason  to  believe  Kuhn  &  Brother 
had  no  right  to  negotiate  the  bill.  This  falls  very  little,  if  any,  short 
of  knowledge.  It  may  fairly  be  assumed  that  one  who  has  reason  to 
believe  a  fact  exists,  knows  it  exists.  Certainly,  if  he  be  a  reasonable 
being.  *  *  * 
Judgment  affirmed. 


STOLLENWERCK  et  al.  v.  THACHER  et  al. 

(Supreme  Judicial  Court  of  Massachusetts.  1S74.     115  Mass.  224.) 

Gray,  C.  J.  This  is  an  action  of  tort  for  the  conversion  of  a  num- 
ber of  bales  of  cotton.  A  verdict  has  been  ordered  for  the  plaintiffs, 
and  the  case  reserved  for  the  determination  of  the  full  court  upon  a 
report  containing  an  abstract  of  the  evidence  given  at  the  trial,  and  a 
number  of  letters  and  documents.  But  the  facts  material  to  the  deci- 
sion, assuming  all  the  controverted  ones  to  be  according  to  the  testi- 
mony introduced  by  the  defendants,  are  not  many ;  and  a  brief  state- 
ment of  them  will  tend  greatly  to  narrow  the  discussion  of  the  prin- 
ciples of  law  by  which  the  case  is  governed. 

The  plaintiffs,  being  buyers  of  cotton  in  Mobile,  made  an  arrange- 
ment with  Joseph  I.  Baker,  a  cotton  broker  in  Boston,  by  which  they 
agree  to  pay  him,  upon  such  orders  on  them  as  he  should  obtain  from 
his  customers  here,  fifty  cents  a  bale,  out  of  their  own  commission  of 
one  and  a  half  per  cent.,  furnish  him  with  types  of  their  classification 
of  cotton,  and  keep  him  advised  at  their  own  expense  of  the  condition 
of  the  cotton  market  in  Mobile ;  he  agreed  to  procure  and  transmit  the 
orders,  and  inform  his  customers  of  their  acceptance  or  rejection;  and 
the  invoices  were  to  be  sent  by  the  plaintiffs  to,  and  the  drafts  for  the 
price  drawn  upon,  the  customers,  and  the  bills  of  lading  attached  to 
the  drafts. 

In  pursuance  of  an  order  given  him  by  Gorham  Gray  &  Company, 
Baker  telegraphed  to  the  plaintiffs  to  buy  for  them  two  hundred  bales 
of  cotton.  The  plaintiffs  replied,  refusing  to  negotiate  on  any  other 
basis  than  that  the  bill  of  lading  should  be  attached  to  the  draft.  They 
bought  the  cotton  in  INIobile,  drew  a  bill  of  exchange  on  Gray  &  Com- 
pany against  the  cotton,  took  the  bill  of  lading  in  their  own  name,  in- 
dorsed it  in  blank,  attached  it  to  the  bill  of  exchange,  procured  the 
latter  to  be  discounted  at  a  bank  in  Mobile,  informed  Baker  of  what 
they  had  done,  and  instructed  him,  on  receiving  the  draft  and  bill  of 
lading,  to  hold  the  bill  of  lading  until  the  draft  was  paid.     Baker  by 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      187 

telegram  and  letter  assented  to  all  this.  The  invoice  sent  by  the  plain- 
tift's  to  Gray  &  Company  showed  that  the  cotton  was  consigned  to  the 
plaintiff's  order.  The  Mobile  Bank  transmitted  the  draft,  with  the  bill 
of  lading  attached,  to  a  bank  in  Boston,  which  presented  the  draft  to 
Gray  &  Company  for  acceptance. 

Upon  such  presentment,  Gray  &  Company  asked  for  the  bill  of  lad- 
ing, and  were  told  that  Baker  was  to  receive  it.  Gray  &  Company 
then  accepted  the  draft,  the  bank  delivered  the  bill  of  lading  to  Baker, 
and  he  afterwards  delivered  it  to  Gray  &  Company,  who  obtained 
the  cotton  from  the  carriers,  gave  them  a  check  for  the  amount  of  the 
freight  from  Mobile  to  Boston,  and  pledged  the  cotton  and  delivered! 
the  bill  of  lading  to  the  defendants  as  security  for  the  payment  of  ad-j 
vances  on  the  cotton.  Gray  testified  that  he  accepted  the  draft  uponj 
Baker's  assurance  that  he  would  hand  him  the  bill  of  lading  as  soon 
as  it  came  to  Baker's  possession,  that  Baker  shortly  afterwards  deliv- 
ered to  him  the  bill  of  lading  unconditionally,  and  that  he  transferred 
the  cotton  to  the  defendants  believing  that  he  owned  it ;  and  his  tes- 
timony though  contradicted  by  Baker's,  must  be  assumed  to  be  true 
for  the  purpose  of  deciding  whether  a  verdict  was  rightly  ordered  for 
the  plaintiffs. 

Baker  and  the  plaintiffs  were  not  partners  as  between  themselves, 
and  Gray  &  Company  did  not  deal  with  Baker  as  a  partner  of  the 
plaintiff's.  His  relation  to  the  plaintiffs  was  that  of  a  broker  only.  He 
looked  to  them,  and  not  to  the  cotton,  for  the  payment  of  his  commis- 
sion. The  case  is  not  within  Gen.  Sts.  c.  54.  Gen.  Sts.  c.  54,  §  2,  pro- 
vide that  "every  factor  or  other  agent  intrusted  with  the  possession  of 
merchandise,  or  a  bill  of  lading  consigning  merchandise  to  him,  for 
the  purpose  of  sale,  shall  be  deemed  to  be  the  true  owner  thereof  so 
far  as  to  give  validity  to  any  bona  fide  contract  made  by  him  with  any 
other  person  for  the  sale  of  the  whole  or  any  part  of  such  merchan- 
dise." 

Baker  was  not  a  factor,  or  a  general  agent  intrusted  with  the  goods 
for  the  purpose  of  sale ;  but  a  special  agent,  with  positive  and  re- 
stricted instructions  to  receive  the  bill  of  lading  on  the  acceptance  of 
the  draft,  hold  the  bill  of  lading  and  the  cotton  until  the  draft  was 
paid,  and  then  deliver  them  to  Gray  &  Company.  He  had  no  right  of 
possession  of  the  bill  of  lading  or  the  cotton  for  any  other  purpose, 
and  no  title  in  or  lien  on  the  cotton.  This  is  not  a  case  of  stoppage  in 
transitu.  Gray  &  Company  were  not  named  in  the  bill  of  lading  as 
consignees  of  the  cotton,  and  the  plaintiffs  have  never  been  divested  of 
their  property  in  the  cotton  as  against  Gray  &  Company  or  any  persons 
claiming  under  them. 

The  numerous  cases  cited  at  the  bar  differ  in  their  circumstances 
rather  than  in  the  statement  of  principles.  A  bill  of  lading,  even  when] 
in  terms  running  to  order  or  assigns,  is  not  negotiable,  like  a  bill  of 


/ 


\ 


188      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

exchange,  but  a  symbol  or  representative  of  the  goods  themselves ;  and 
the  rights  arising  out  of  the  transfer  of  a  bill  of  lading  correspond, 
not  to  those  arising  out  of  the  indorsement  of  a  negotiable  promise 
for  the  payment  of  money,  but  to  those  arising  out  of  a  delivery  of 
the  property  itself  under  similar  circumstances.  If  the  bill  of  lading 
is  once  assigned  or  indorsed  generally  by  the  original  holder,  upon  or 
with  a  view  to  a  sale  of  the  property,  any  subsequent  transfer  thereof 
to  a  bona  fide  purchaser  may  indeed  give  him  a  good  title  as  against 
the  original  owner.  But  so  long  as  the  bill  of  lading  remains  in  the 
hands  of  the  original  party,  or  of  an  agent  intrusted  with  it  for  a  spe- 
:ial  purpose,  and  not  authorized  to  sell  or  pledge  the  goods,  a  person 
who  gets  possession  of  it  without  the  authority  of  the  owner,  although 
with  the  assent  of  the  agent,  acquires  no  title  as  against  the  principal. 
National  Bank  of  Green  Bay  v.  Dearborn,  115  Mass.  219,  15  Am.  Rep. 
92 ;  Gurney  v.  Behrend,  3  E.  &  B.  622,  632 ;  Pease  v.  Gloahec,  L.  R. 
1  P.  C.  219,  228. 

In  the  present  case,  Baker,  being  a  special  agent  authorized  to  de- 
liver the  bill  of  lading  only  upon  payment  of  the  bill  of  exchange 
drawn  against  the  goods  and  attached  to  the  bill  of  lading,  could  not 
bind  his  principals  by  a  delivery  made  without  such  payment.  To  hold 
otherwise  would  be  to  allow  a  person,  intrusted  with  goods  merely  for 
the  purpose  of  collecting  the  price  and  then  delivering  them,  to  sell 
them  on  credit.  The  authority  of  Baker,  being  special  and  limited, 
could  not  be  enlarged  by  his  own  declarations.  Alussey  v.  Beecher,  3 
Gush.  511. 

It  follows  that  Gray  &  Company,  not  having  paid  the  draft,  nor  ac- 
quired possession  of  the  bill  of  lading  with  the  plaintiffs'  consent,  had 
no  property  in  the  goods,  and  could  convey  none  to  the  defendants,  so 
as  to  defeat  the  plaintiffs'  title.  The  plaintiffs  are  therefore  entitled 
to  recover. 

This  is  not  an  action  in  the  nature  of  assumpsit  for  the  proceeds  of 
a  sale  of  the  property,  in  which  the  plaintiff's  might  be  deemed  to  have 
waived  any  tort,  and  be  obliged  to  submit  to  a  deduction  of  the  ex- 
penses of  the  sale  by  which  such  proceeds  had  been  obtained.  It  is  an 
action  in  the  nature  of  trover  for  the  conversion  of  the  goods,  in  which 
the  plaintiff's  are  entitled  to  recover  their  market  value  at  the  time  of 
the  conversion  by  the  defendants,  and  are  not  obliged  to  allow  a  com- 
mission to  Gray  &  Company  for  doing  an  act  which  is  not  shown  to 
have  been  for  the  interest  or  according  to  the  intent  of  the  plaintiff's. 
Bartlett  v.  Bramhall,  3  Gray,  257. 

But  the  amount  paid  by  Gray  &  Company  to  discharge  the  lien 
which  the  carriers  had  against  the  plaintiffs  for  the  freight  on  the  cot- 
ton enured  to  the  benefit  of  the  plaintiffs,  and  should  be  deducted  from 
the  market  value  of  the  goods.  Adams  v.  O'Connor,  100  Alass.  515,  1 
Am.  Rep.  137;  Whitney  v.  Beckford,  105  Mass.  267.  That  amount 
must  therefore,  unless  the  parties  agree  upon  it,  be  ascertained  by  an 


I 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      189 

assessor,  pursuant  to  the  terms  of  the  report,  the  verdict  amended  ac- 
cordingly, and 

Judgment  rendered  thereon  for  t'  e  plaintiffs. 


pollard  v.  reardon. 
reardon  v.  pollard. 

{Circuit  Court  of  Appeals  of  the  United   States,  1S95.     65  Fed.  S4S,  13  C.  C. 

A.   171.) 

Appeals  from  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Massachusetts. 

This  was  a  suit  by  Reuben  T.  Pollard  and  others  against  Leverett 
Saltonstall,  collector  of  the  port  of  Boston,  and  Edmund  Reardon, 
for  the  foreclosure  of  a  chattel  mortgage  and  an  injunction.  The  cir- 
cuit court  rendered  a  decree  for  complainants.  56  Fed.  861.  De- 
fendant Reardon  and  complainants  separately  appealed  from  the  de- 
cree. 

In  August,  1888,  one  N.  B.  Mansfield  made  a  bill  of  sale  to  Pol- 
lard, Pettus  &  Co.,  of  New  York,  of  a  quantity  of  hides  then  on  the 
coast  of  Africa,  and  loaded,  or  about  to  be  loaded,  on  a  vessel  for 
shipment  to  said  Mansfield.  The  bill  of  sale  was  given  as  security  for 
the  renewal  of  a  note  of  Mansfield's  for  $10,500,  held  by  Pollard, 
Pettus  &  Co.  In  October,  1888,  in  consideration  of  the  indorsement 
by  one  Edmund  Reardon  of  a  note  for  $8,000,  Mansfield  gave  to 
Reardon  a  memorandum  of  sale  of  the  hides,  agreeing  to  deliver  the 
bill  of  lading  when  received.  In  November,  1888,  the  bill  of  lading- 
was  received  by  Mansfield,  and  by  him  indorsed  and  delivered  to 
Reardon.  The  note  indorsed  by  Reardon  was  once  renewed,  and 
before  the  arrival  of  the  hides  the  renewal  note  was  protested,  and 
paid  by  Reardon.  On  the  8th  of  April,  1889,  the  vessel  carrying  the 
hides  arrived,  and  on  the  16th  of  April  a  permit  was  issued  to  Rear- 
don by  the  collector  of  customs  to  land  the  hides.  April  17th,  Pollard, 
Pettus  &  Co.  demanded  the  hides  from  the  collector,  and  immediately 
afterwards  brought  this  suit  to  foreclose  the  chattel  mortgage  evi- 
denced by  their  bill  of  sale,  and  to  enjoin  the  delivery  of  the  hides 
to  Reardon.  At  the  time  of  the  institution  of  the  suit  there  remained 
due  on  the  note  of  Mansfield  to  Pollard,  Pettus  &  Co.  $3,334.30,  but 
they  claimed  that  the  hides  were  conveyed  to  them  as  security  also  fori 
a  balance  due  to  them  from  Mansfield  on  general  account.  The  court] 
found  in  their  favor  as  to  the  balance  due  on  the  note  only,  and  this! 
they  assigned  as  error. 

Before  Putnam,  Circuit  Judge,  and  Nelson  and  Webb,  District 
Judges. 


190      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

Putnam,  Circuit  Judge.  The  effect  to  be  given  to  the  negotiation 
of  the  bill  of  lading  in  this  case  does  not  seem  to  have  been  brought 
to  the  attention  of  the  circuit  court  as  it  has  been  to  ours.  Bills  of 
/lading  are  not  negotiable  instruments  in  the  full  sense  that  promissory 
/notes  are,  yet  they  are  justly  styled  negotiable.  Among  the  reasons 
I  for  this  are  that  they  are  well-recognized  commercial  instruments, 
that  when  indorsed  in  blank  they  carry  title  by  mere  delivery  from 
hand  to  hand,  and  that  the  community  gives  credit  in  reliance  on  what 
appears  on  the  face  of  them.  Pollard  v.  Vinton,  105  U.  S.  7,  8,  26 
L.  Ed.  998 ;  Friedlander  v.  Railway  Co.,  130  U.  S.  416,  424,  9  Sup. 
Ct.  570,  32  L.  Ed.  991;  Pease  v.  Gloahec,  L.  R.  1  P.  C.  219,  227; 
4  Daniel,  Neg.  Inst.  (4th  Ed.)  §  1727.  They  have  become  by  custom 
and  necessity  peculiarly  subject  to  the  rules  stated  by  Lord  Herschell 
in  Bank  v.  Simmons,  [1892]  App.  Cas.  201,  215,  as  follows:  "The 
general  rule  of  the  law  is  that,  where  a  person  has  obtained  the  prop- 
erty of  another  from  one  who  is  dealing  with  it  without  the  authority 
I  of  the  true  owner,  no  title  is  acquired  as  against  that  owner,  even 
though  full  value  be  given,  and  the  property  be  taken  in  the  belief 
that  an  unquestionable  title  thereto  is  being  obtained,  unless  the  person 
taking  it  can  show  that  the  true  owner  has  so  acted  as  to  mislead 
him  into  the  belief  that  the  person  dealing  with  the  property  had 
authority  to  do  so.  If  this  can  be  shown,  a  good  title  is  acquired  by 
personal  estoppel  against  the  true  owner." 

The  peculiar  form  and  phraseology  of  ordinary  bills  of  lading,  and 
the  generally  known  reliance  placed  upon  them  and  credit  given  them 
in  commercial  communities,  render  the  principles  of  these  expressions 
especially  applicable  to  them ;  and  common  honesty,  in  the  light  of 
modern  business  and  financial  methods,  throws  a  special  burden  on 
those  who  put  them  out.  It  is  true,  as  said  by  the  supreme  court  in 
the  cases  cited,  that  they  are  as  so  much  cotton,  grain,  or  corn,  and 
that,  as  no  sale  of  such  articles,  when  lost  or  stolen,  can  divest  owner- 
ship, the  same  is  true  as  to  sales  of  their  lost  or  stolen  symbols.  In 
mere  cases  of  theft. or  loss  this  is  a  clear  rule;  yet  when  there  is  no 
theft  or  loss,  but  a  voluntary  intrusting  to  an  agent  or  other  person, 
though  for  a  special  purpose,  with  no  notice  on  the  face  of  a  limited 
I  right,  the  fact  is  then  to  be  considered  that  there  is  an  ostensible  au- 
I  thorization  found  in  the  word  "assigns,"  appearing  in  the  usual  bill 
'  of  lading,  and  in  the  one  at  bar,  which  is  neither  found  nor  implied 
in  a  mere  change  or  delivery  or  possession  of  the  articles  of  which 
bills  of  lading  are  the  symbols.  The  same  may  be  said  of  a  bill  of 
lading  which  has  been  indorsed  in  blank;  as,  by  analogy  to  other 
commercial  instruments  of  a  negotiable  character,  such  an  indorse- 
ment apparently  authorizes  the  holder  to  fill  up  the  blank  at  his  op- 
tion. 

The  application  of  the  rules  of  estoppel  to  bills  of  lading  like  this 
It  bar,  appearing  on  their  faces  to  be  transferable  in  the  light  of  the 


Sec.  S)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      191 

views  and  expressions  which  we  have  cited,  would  seem  to  be  in 
harmony  with  legal  principles.  Nevertheless,  the  state  of  the  authori- 
ties on  this  topic  is  not  satisfactory.  It  must  be  admitted  that  the  or- 
dinary deposit  of  title  papers  does  not  enable  the  person  holding  them 
to  make  a  title  to  personal  property  beyond  what  he  himself  possesses. 
The  cases  on  this  point  are  numerous.  A  marked  one  is  Johnson  v. 
Credit  Lyonnais  Co.  (decided  in  1877)  3  C.  P.  Div.  32,  which  touched 
the  negotiability  of  certain  dock  warrants.  Chief  Justice  Cockburn 
delivered  the  opinion,  and  said  (page  40)  that,  at  common  law,  the 
leaving  in  the  vendor  the  possession  of  goods  bought,  or  of  the  docu- 
ments of  title,  would  not  estop  the  vendee  in  case  of  a  fraudulent  sale 
or  pledge  by  the  party  with  whom  the  goods  or  documents  were  left. 
It  is  evident,  however,  that,  as  the  chief  justice  concurred  in  Rumball 
V.  Bank,  2  Q.  B.  Div.  194,  he  had  in  view  only  the  ordinary  principle 
touching  such  matters,  which  may  be  distinguished  from  cases  involv- 
ing bills  of  lading  negotiable  in  form. 

Numerous  cases  may  be  found  where  it  has  been  held  that  a  fac- 
tor who  holds  a  bill  of  lading  for  sale  cannot  pledge;  but  in  such 
cases  either  it  appeared  that  there  w"ere  grounds  for  charging  the 
pledgee  with  knowledge  of  the  factorship,  or  the  decisions  were  made 
before  the  modern  development  of  the  doctrine  of  estoppel,  or  without 
giving  it  full  consideration.  The  later  English  text-books,  while  laying 
down  in  general  terms  the  proposition  that  a  bill  of  lading  is  not  nego- 
tiable in  the  full  sense  in  which  promissory  notes  are,  do  not  seem 
to  have  come  to  the  precise  question  upon  which  we  must  pass.  Carv 
Carr.  by  Sea  (2d  Ed. ;  published  in  1892)  p.  490,  lays  down  the  ordi 
nary  rule  that  possession  of  the  bill  of  lading  is  only  equivalent  to| 
that  of  the  goods  themselves ;  but  the  precise  proposition  in  question 
here  is  not  considered.  The  same  mav  be  said  as  to  Benj.  Sales  (6th 
Ed.;  published  in  1892)  p.  845.  Scrutt.  Charter  Parties  (3d  Ed.; 
published  in  1893)  is  no  more  definite;  although  on  page  157  the  au- 
thor says  that  "the  lawful  holder  of  a  bill  of  lading,  in  whom  the 
property  in  the  goods  is  vested,  may,  by  indorsement,  transfer  a  right 
greater  than  he  himself  has,  for  he  transfers  his  position  under  the 
contract  evidenced  in  the  bill  of  lading." 

Bank  v.  Henderson,  L.  R.  5  P.  C.  501,  is  directly  in  point  in  favor 
,  of  Reardon,  if  the  transaction  did  in  fact  raise  a  trust  attaching  to  the 
I  bill  of  lading,  as  the  court  assumed  it  did.  Sir  Barnes  Peacock  cites 
iwith  apparent  approval  (page  512)  from  the  judgment  in  Rodger  v. 
I  The  Comptoir  d'Escompte  de  Paris,  L.  R.  2  P.  C.  393,  the  following: 
'."The  general  rule,  so  clearly  stated  and  explained  by  Lord  St.  Leon- 
iards,  is  that  the  assignee  of  any  security  stands  in  the  same  position  as 
ithe  assignor  as  to  the  equities  arising  upon  it.  This,  as  a  general  rule, 
]was  not  disputed ;  but  it  was  contended  that  the  case  of  a  bill  of  lad- 
jing  is  exceptional,  and  must  be  dealt  with  on  special  grounds.  Doubt- 
jless  the  holder  of  an  indorsed  bill  of  lading  may,  in  the  course  of  com- 


1 


192      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

mercial  dealing,  transfer  a  greater  right  than  he  himself  has.  The 
exception  is  founded  on  the  negotiable  quality  of  the  document.  It  is 
confined  to  the  case  where  the  person  who  transfers  the  right  is  him- 
self in  actual  and  authorized  possession  of  the  document,  and  the 
transferee  gives  value  on  the  faith  of  it,  without  having  notice  of  any 
circumstance  which  would  render  the  transaction  neither  fair  nor 
honest." 

None  of  the  decisions  of  the  supreme  court  is  in  point.  In  some 
of  them  the  rule  is  recognized — so  frequently  stated — that  a  factor 
who  holds  a  bill  of  lading  for  sale  cannot  pledge,  but  we  do  not  find 
that  that  court  has  ever  said  that  advances  made  to  a  factor  holding 
a  clean  bill  of  lading  by  one  not  chargeable  with  knowledge  of  the 
factorship  will  not  be  protected.  In  Conard  v.  Insurance  Co.,  1  Pet. 
386.  the  following  appears  on  page  445  (7  L.  Ed.  189):  "By  the 
well-settled  principles  of  commercial  law  the  consignee  is  thus  con- 
stituted the  authorized  agent  of  the  owner,  whoever  he  may  be,  to 
receive  the  goods ;  and  by  his  indorsements  of  the  bill  of  lading  to  a 
bona  fide  purchaser  for  a  valuable  consideration,  without  notice  of 
any  adverse  interest,  the  latter  becomes,  as  against  the  world,  the 
owner  of  the  goods.  This  is  the  result  of  the  principle  that  bills  of 
lading  are  transferable  by  indorsement,  and  thus  may  pass  the  prop- 
erty. It  matters  not  whether  the  consignee  in  such  case  be  the  buy- 
er of  the  goods  or  the  factor  or  agent  of  the  owner.  His  transfer,  in 
such  a  case,  is  equally  capable  of  divesting  the  property  of  the  owner 
and  vesting  it  in  the  indorsee  of  the  bill  of  lading.  And,  strictly 
speaking,  no  person  but  such  consignee  can,  by  an  indorsement  of  the 
bill  of  lading,  pass  the  legal  title  to  the  goods."  It  is  true  that  these 
expressions  were  not  strictly  in  point.  Nevertheless,  they  must  be 
accepted  as  the  unreserved  opinion  of  the  great  jurist,  Judge  Story, 
who  uttered  them. 

It  may  be  claimed  that  the  various  factors  acts,  now  law  in  several 
states  and  in  England,  constitute,  by  implication,  legislative  declara- 
tions that  the  holder  of  a  bill  of  lading  cannot  vest  a  title  better  than 
his  own.  But  these  acts  relate  to  a  multitude  of  matters.  It  must 
be  admitted  that  legislation  was  desirable  to  remove  doubts,  and  set- 
tle the  law  touching  questions  of  the  class  under  discussion ;  and 
many  statutes,  modern  as  well  as  ancient,  have,  after  all,  been  found 
to  be  only  declaratory  of  the  common  law.  The  transactions  in  issue 
in  this  case  related  to  merchandise  on  the  coast  of  Africa,  about  to  be 
shipped  on  the  high  seas,  and  were  between  residents  of  Massachusetts 
and  residents  of  New  York.  They  were,  therefore,  not  directly  con- 
trolled by  legislation  all  of  which  is  local,  nor  can  this  court  be  of  ne- 
cessity indirectly  governed  by  any  implications   arising  therefrom. 

On  the  whole,  the  legal  principles  applicable  seem  clear,  and,  if  the 
case  involves  any  obscurity,  we  think  it  is  because  those  principles 
have  not  been  freely  stated  or  applied.     In  the  developments  of  com- 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      193 

merce  and  commercial  credits  the  bill  of  lading  has  come  to  repre- 
sent the  property,  but  with  greater  facility  of  negotiation,  transfer, 
and  delivery  than  the  property  itself.  It  is  a  negotiable  instrument, 
even  though  not  in  the  same  sense  as  promissory  notes  or  bills  of  ex- 
change. It  carries  on  its  face,  in  the  words  "and  assigns,"  an  au- 
thority to  dispose  of  it,  and,  as  we  have  seen,  a  like  authority  when 
indorsed  in  blank,  by  which  the  person  who  voluntarily  puts  it  out, 
or  permits  it  to  be  put  out,  ought  to  be  estopped.  And  it  has  become 
so  universal  and  necessary  a  factor  in  mercantile  credits  that  the  law 
should  make  good  what  the  bill  of  lading  thus  holds  out.  There  is 
every  reason  found  in  the  law  of  equitable  estoppel  and  in  sound  pub- 
lic policy  for  holding,  and  no  injustice  is  involved  in  holding,  that,/ 
if  one  of  two  must  suffer,  it  should  be  he  who  voluntarily  puts  out  ofl 
his  hands  an  assignable  bill  of  lading,  rather  than  he  who  innocentlyi 
advances  value  thereon. 

When  Pollard,  Pettus  &  Co.  accepted  from  Mansfield  a  bill  of  sale 
of  the  hides  in  question,  they  knew  that  in  the  regular  course  of  busi- 
ness a  clean  bill  of  lading  for  them  would  issue  to  him,  clothing  him 
with  the  customary  indicia  of  absolute  ownership.  They  took  the 
chances  arising  from  this.  They  must  stand  as  though  they  assented 
to  it,  and  they  can  claim  no  right  against  any  one  who  dealt  with 
Mansfield  in  good  faith  relying  upon  it.  Their  presumed  assent  to 
the  issue  of  the  bill  of  lading  to  Mansfield  is  emphasized  by  their 
laches  in  applying  for  it.  Whatever  may  be  the  nature  of  their  right, 
it  cannot  prevail  against  Reardon's  title  under  the  bill  of  lading. 

The  law  of  stoppage  in  transitu  admits  the  right  of  the  purchaser 
of  the  cargo  to  stop  it  at  any  intermediate  point,  and  transfer  it  by 
an  actual  delivery  of  it.  Wliere  the  delivery  is  of  the  bill  of  lading, 
the  point  settled  is  that  it  is  of  the  same  effect  as  an  actual  delivery 
of  the  cargo.  Therefore  cases  touching  stoppage  in  transitu  are  con- 
sidered to  relate  rather  to  the  question  of  the  effect  of  the  negotiation 
of  the  bill  of  lading  than  to  that  of  the  apparent  authority  of  the  per- 
son holding  it. 

There  is  no  question  touching  Reardon's  bona  fides.  That  his  ad- 
vances constituted  a  present  consideration  for  value  is  sustained  by 
Leask  V.  Scott,  2  O.  B.  Div.  376.  This  case  seems  to  be  now  regard- 
ed in  England  as  settled  law.  When  Reardon  first  made  his  advances 
he  did  it  with  a  stipulation  that  the  bill  of  lading  should  be  delivered 
to  him  as  soon  as  it  arrived.  Consequently  the  delivery  of  it  to  him 
on  arrival,  in  connection  with  the  prior  stipulation,  constituted  in 
equity  but  one  transaction.  Moreover,  while  Mansfield  was  still  ap- 
parently solvent,  Reardon  renewed  his  advances  on  the  strength  of  it. 

A  question   of   jurisdiction   has  been   suggested.     It  is,   we   think, 

without   force.     At   the   time   the  complainants  below  demanded  the 

goods  from  the  collector  they  had  not  in  fact  been  delivered  from  his 

custody.     Therefore,  under  the  provisions  of  section  934  of  the  Re- 

WooDw.  Sales — 13 


11 


194      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

vised  Statutes  (U.  S.  Comp.  St.  1901,  p.  689)  they  were  irreplevia- 
ble, although  subject  to  the  orders  and  decrees  of  the  courts  of  the 
United  States  having  appropriate  jurisdiction.  There  was  no  form 
of  action  at  common  law  which  would  give  complainants  possession  of 
them.  A  bill  in  equity  was  the  only,  and  therefore  an  appropriate, 
method  of  proceeding  therefor. 

The  bill  in  this  case  does  not  pray  relief  by  the  way  of  redeeming 
from  Reardon,  but  merely  demands  possession  of  the  goods,  on  the 
ground  that  the  claim  of  Pollard,  Pettus  &  Co.,  the  complainants  be- 
low, is  prior  to  that  of  Reardon.  Inasmuch  as  we  find  that  Reardon 
has  a  prior  claim,  and  a  prior  right  of  possession,  no  relief  can  be 
granted  tmder  this  bill.  Since  it  was  filed,  a  stipulation  was  entered 
into  between  the  parties  in  interest,  by  virtue  of  which  the  goods  were 
delivered  to  Reardon  without  prejudice  to  the  controversy  involved 
in  this  suit.  Therefore  no  further  relief  is  asked  for  against  the 
collector,  and,  on  our  conclusions,  the  complainants  below  were  never 
entitled  to  any  relief  against  him.  By  reason  of  the  stipulation  the 
collector  had  no  occasion  to  take  any  share  in  this  appeal,  nor  has  he 
done  so.  He  is  therefore  not  entitled  to  any  costs  in  this  court.  He. 
however,  made  a  several  defense  in  the  circuit  court,  and  properly  did 
so. 

The  decree  of  the  circuit  court  is  reversed,  and  the  case  remanded 
to  that  court,  with  directions  to  enter  a  decree  dismissing  the  bill, 
with  full  several  costs  in  that  court  for  Saltonstall,  and  with  full  sev- 
eral costs  in  this  court  and  in  that  court  for  Reardon. 


COMMERCIAL  BANK  v.  J.  K.  ARMSBY  CO. 

(Supreme  Court  of  Georgia.  1904.     120  Ga.  74.  47  S.  E.  5S9,  65  L.  R.  A.  443.) 

Candler,  J.  The  J.  K.  Armsby  Company,  an  Illinois  corporation, 
shipped  to  \A'alton  &  Carr,  their  brokers  in  Augusta,  a  quantity  of 
salmon  for  distribution  to  different  parties  to  whom  the  goods  had 
been  sold.  Walton  &  Carr  were  merely  agents  of  the  Armsby  Com- 
pany, and  had  no  right  or  title  to  the  salmon.  The  goods  were  ship- 
ped from  a  point  in  Oregon,  by  parties  from  whom  they  had  been 
ordered  by  the  Armsby  Company,  on  a  through  bill  of  lading  to  Au- 
gusta, and  were  consigned  to  the  order  of  the  consignor,  with  direc- 
tions to  notify  ^^'alton  &  Carr.  The  Armsby  Company  sent  Wal- 
ton &  Carr  a  check  for  the  amount  of  the  freight,  which  was  paid, 
and  it  also  mailed  them  the  original  bill  of  lading,  which  was  indorsed 
blank.  Carr,  a  member  of  the  firm  of  Walton  &  Carr,  took  the  bill 
of  lading  to  the  Commercial  Bank  of  Augusta,  and  hypothecated  it 
for  a  loan  of  money.     Shortly  thereafter  Walton  &  Carr  failed,  and 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      195 

the  bank  converted  the  salmon  for  the  payment  of  its  debt,  where- 
upon the  Armsby  Company  brought  against  it  the  present  suit,  which 
was  an  action  of  trover.  The  case  was  tried  before  the  judge  of  the 
city  court  of  Richmond  county,  without  a  jury. 

The  bank  showed  that  it  was  the  general  custom  of  trade  in  Au- 
gusta that  bills  of  lading  "to  order  notify"  were  attached  to  drafts 
for  the  purchase  price  of  the  goods  represented  by  them,  that  pos- 
session of  the  bill  of  lading  could  only  be  obtained  by  payment  of 
the  draft,  that  possession  of  such  a  bill  of  lading  was  considered  prima 
facie  evidence  of  ownership  of  the  property  for  which  it  was  issued, 
and  that  it  was  treated  by  banks  as  negotiable  paper.  It  was  also 
shown  that  the  J.  K.  Armsby  Company  had  done  business  in  August 
for  a  number  of  years,  and  that,  while  Walton  &  Carr  were  mer- 
chandise brokers,  they  also  bought  and  sold  goods  on  their  own  ac- 
count. It  was  admitted  that  neither  the  bank  nor  any  of  its  officials 
knew  or  had  reason  to  suspect  that  Carr  had  no  right  to  convey  the 
salmon,  and  that,  in  the  event  the  bank  should  be  held  liable,  the 
proper  amount  to  be  recovered  was  $700.  The  judge  found  in 
favor  of  the  plaintifif.  and  rendered  judgment  in  its  favor  for  the 
amount  mentioned.     The  defendant  excepted. 

"Where  an  owner  has  given  to  another  such  evidence  of  the  right 
of  selling  his  goods,  as,  according  to  the  custom  of  trade  or  the 
common  understanding  of  the  world,  usually  accompanies  the  au- 
thority of  disposal,  or  has  given  the  external  indicia  of  the  right  of 
disposing  of  his  property,  a  sale  to  an  innocent  purchaser  divests 
the  true  owner's  title."  Civ.  Code,  §  3539.  The  sole  question  for 
our  determination,  then,  is,  does  a  bill  of  lading  of  the  character 
of  the  one  involved  in  this  suit  constitute  such  an  external  indicium 
of  the  right  of  disposing  of  the  property  for  which  it  was  issued  as 
to  bring  the  case  within  the  operation  of  the  rule  laid  down  in  the 
Code  section  cited? 

As  a  general  rule,  the  transferee  of  a  bill  of  lading  can  obtain  no 
better  title  to  the  goods  which  it  covers  than  that  which  was  in  the 
person   by    whom   it    was   transferred.      Indeed,   it   is    a   self-evident 
proposition  that  no  man  can  convey  that  which  he  does  not  possess. 
But  the  true  owner  of  property  may,  by  placing  it  in  the  power  of 
another  to  defraud  innocent  purchasers  by  an  apparently  valid  trans-  | 
fer  of  the  property,  cut  himself  off    from  claiming  it,   and   thereby  I 
divest  the  title  from  himself.     In  4  Am.   &  Eng.  Enc.   L.   (2d  Ed.)  ' 
551,  it  is  said  that  an  important  exception  to  the  general  rule  which 
has  already  been  stated  "arises  in  the  case  of  the  transfer  of  a  bill 
of  lading  to  a  bona  fide  purchaser  for  value  by  a  consignee  to  whom 
the  goods  are  by  the  terms  of  the  instrument  made  deliverable,  or 
to  whom  the  consignor  and  original  owner  of  the  goods  has  indorsed 
and  delivered  the  bill.     It  seems  to  be  established  that  in  this  case 
the  transfer  defeats  the  vendor's  right  of  stoppage  in  transitu,  and 


196      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

passes  the  title  to  the  goods  to  the  bona  fide  transferee."  See,  also, 
6  Cyc.  424;  1  }^Iechem,  Sales,  §  166;  Pollard  v.  Reardan,  65  Fed. 
848,  13  C.  C.  A.  171. 

I  While  a  bill  of  lading  is  not  in  the  full  sense  a  negotiable  instru- 
ment, it  is  treated  by  universal  commercial  usage  as  a  symbol  of  the 
goods  for  which  it  is  issued,  and  consequently  it  is  in  a  measure 
negotiable.  In  Georgia  it  may  be  pledged  as  security  for  debt  (Civ. 
Code  1895,  §  2956),  and  a  bona  fide  assignee  for  value  is  protected 
in  his  title  against  the  owner's  right  of  stoppage  in  transitu  (Civ. 
Code  1895,  §  3553).  In  American  Nat.  Bank  v.  Georgia  R.  Co.,  96 
Ga.  665,  23  S.  E.  898,  51  Am.  St.  Rep.  155,  the  status  of  bills  of 
lading  under  our  law  is  discussed  with  considerable  fullness ;  and, 
while  the  decision  in  that  case  is  not  directly  in  point  on  the  ques- 
tion involved  in  the  case  at  bar,  the  reasoning  of  Mr.  Chief  Justice 
Simmons  has  an  important  bearing  thereon.  The  following  language 
from  the  opinion  of  Mr.  Justice  Miller  in  the  case  of  McNeil  v.  Hill, 
Woolw.  96,  Fed.  Cas.  No.  8,914,  is  there  quoted  with  approval :  "As 
civilization  has  advanced  and  commerce  extended,  new  and  artificial 
modes  of  doing  business  have  superseded  the  exchanges  by  barter 
and  otherwise  which  prevail  while  society  is  in  its  earlier  and  sim- 
pler stages.  The  invention  of  the  bill  of  exchange  is  a  familiar 
illustration  of  this  fact.  A  more  modern,  but  still  not  recent,  in- 
vention of  like  character,  for  the  transfer,  without  the  cumbersome 
and  often  impossible  operations  of  actual  delivery,  of  articles  of  per- 
sonal property,  is  the  indorsement  or  assignment  of  bills  of  lading 
and  warehouse  receipts.  Instruments  of  this  kind  are  sui  generis. 
From  long  use  and  trade  they  have  come  to  have  among  commercial 
men  a  well  understood  meaning,  and  the  indorsement  or  assignment  of 
them  as  absolutely  transfers  the  general  property  of  the  goods  and 
chattels  therein  named  as  would  a  bill  of  sale." 

In  this  case  there  was  no  dispute  as  to  the  general  custom  of  trade 
in  regard  to  bills  of  lading  of  the  character  of  the  one  negotiated 
by  Carr  with  the  Commercial  Bank.  It  was  the  daily  practice  of 
banks  in  Augusta  and  elsewhere  to  advance  money  on  such  security, 
for  possession  of  the  bill  of  lading  was  regarded  as  prima  facie 
evidence  of  the  title  of  the  holder  to  the  goods  of  which  the  bill  was 
the  symbol.  Ordinarily  bills  of  lading  of  this  kind  are  attached  to 
drafts  for  the  purchase  price  of  the  goods,  and  can  only  be  obtained 
by  pavment  of  the  drafts.  Carr's  possession  of  the  bill  of  lading  was 
therefore  prima  facie  evidence  that  he  had  paid  a  draft  drawn  by 
the  consignor,  and  was  entitled  to  the  property.  The  departure  of 
the  Armsby  Company  from  this  custom  placed  it  in  the  power  of 
Carr  to  commit  a  fraud  on  the  bank,  an  opportunity  of  which  he 
seems  to  have  promptly  availed  himself.  Applying  the  well-known 
rule  that,  where  one  of  two  innocent  persons  must  suffer  from  the 
wrong  of  another,  the  burden  should  be  borne  by  him  who  placed 


Sec.  8)       ISSUE   OF    DOCUMENT    OF   TITLE TRANSFER    THEREOF  197 

it  in  the  power  of  the  wrongdoer  to  perpetrate  the  fraud,  we  fail  to 
see  how  it  can  be  held  that  the  plaintiff  can  recover. 

The  Georgia  cases  cited  by  counsel  for  the  defendant  in  error  do 
not,  in  our  opinion,  conflict  with  what  is  here  laid  down.  The  case 
of  Tison  V.  Howard,  57  Ga.  410,  which  is  more  nearly  in  point  than 
any  of  the  other  cases  cited,  is  easily  distinguishable  from  the  case 
at  bar.  There  the  owner 'of  the  goods  received  from  the  transporta- 
tion company  duplicate  bills  of  lading,  both  of  which  he  indorsed  in 
blank ;  sending  the  original  to  his  factor,  and  depositing  the  du- 
plicate in  a  bank  for  safe-keeping,  and  for  no  other  purpose.  The 
bailee  bank  indorsed  the  duplicate  bill  of  lading,  and  secured  from 
the  factor  an  amount  of  money  in  excess  of  the  value  of  the  goods. 
The  court  held,  in  effect,  that  a  bill  of  lading  is  not,  in  the  full  sense, 
a  negotiable  instrument,  and  that,  the  deposit  of  the  bill  with  the 
bank  being  purely  a  bailment  for  safe-keeping,  the  virtual  theft  of 
it  by  the  banker  did  not  deprive  the  true  owner  of  the  goods  of  his 
title. 

In  the  case  now  under  consideration  no  such  state  of  facts  is  made 
to  appear.  The  Armsby  Company  forwarded  to  Walton  &  Carr  a 
bill  of  lading,  the  possession  of  which,  under  the  universal  custom 
of  business,  gave  a  prima  facie  right  to  the  disposal  of  the  goods 
for  which  it  was  issued.  The  purpose  for  which  the  instrument  was 
confided  to  Walton  &  Carr  does  not  definitely  appear  from  the  record, 
but  there  is  nothing  to  indicate  that  it  was  merely  intrusted  to  them 
for  safe-keeping.  There  was  nothing  to  put  the  bank  on  notice  that 
title  to  the  property  was  in  any  one  other  than  the  holder  of  the  bill 
of  lading.  A  fraud  was  committed  by  Carr,  by  means  of  which  he 
obtained  from  the  bank  a  large  sum  of  money.  To  say  nothing  of 
the  provisions  of  section  3539  of  the  Civil  Code  of  1895,  the  plainest 
principles  of  equity  require  that  the  Armsby  Company,  which  made 
the  commission  of  the  fraud  possible,  and  not  the  bank,  should  bear 
the  loss. 

Judgment  reversed.  All  the  Justices  concur,  except  Lamar,  J.,  dis- 
qualified.■*■* 

*4  By  section  31  of  the  proposed  Bills  of  Lading  Act,  which  was  approved 
by  the  Commissioners  on  Uniform  State  Laws  in  1909,  it  is  provided  that  "'a 
negotiable  bill  may  be  negotiated  by  any  person  in  possession  of  the  same 
however  such  possession  may  have  been  acquired,  if,  by  the  terms  of  the  bill, 
the  carrier  undertakes  to  deliver  the  goods  to  the  order  of  such  person,  or 
if  at  the  time  of  negotiation  the  bill  is  in  such  form  that  it  may  be  negotiated 
by  delivery."  Compare  Sales  Act,  §  32.  And  see  article  by  Professor  Bur- 
dick,  "A  Revival  of  Codification,"  10  Columbia  Law  Rev.  118,  124. 


198      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 


MOORE  V.  LOUISIANA  NAT.  BANK. 

(Supreme  Court  of  Louisiana,  1S92.     44  La.  Ann.  99,  10  South.  407,  32  Am. 

St.  Rep.  332.) 

Breaux,  J.  This  is  an  action  by  plaintiffs,  a  firm  in  Philadelphia, 
against  the  defendant,  to  recover  the  value  of  50  barrels  of  whisky, 
sold  by  them  to  Oppenheimer  &  Co.  The  latter  directed  the  plaintiffs 
to  draw  on  them,  payable  in  New  Orleans,  at  one  day's  sight,  for  the 
purchase  price.  The  whisky  was  in  a  bonded  warehouse,  for  which 
plaintiffs  held  certificates.  They  drew  on  the  purchasers,  and  attached 
their  warehouse  receipts,  indorsed  by  them,  to  the  bill,  which  was 
handed  to  the  First  National  Bank  of  Philadelphia,  wdiich  sent  it, 
with  the  receipts,  to  the  defendant  for  collection.  The  letter  was 
brief,  and  did  not  notify  the  collecting  agents  to  retain  the  receipts 
on  acceptance  of  the  draft.  In  compliance  with  usage,  the  draft  was 
left  with  the  drawees  for  examination.  It  was  returned  by  them  with 
their  acceptance,  and  they  retained  the  warehouse  receipts.  The  ac- 
ceptors sold  these  receipts.  The  draft  was  returned  by  the  collecting 
agent  to  the  Philadelphia  bank,  unpaid. 

Plaintiffs  allege  that  the  illegal  delivery  of  the  warehouse  certifi- 
cates by  the  defendant  enabled  the  drawees  to  perpetrate  a  fraud  upon 
their  rights.  Testimony  was  admitted  for  the  purpose  of  proving  the 
local  usage  and  custom  of  collecting  banks  in  matter  of  retaining  or 
delivering,  after  the  acceptance,  of  drafts,  bills  of  lading,  or  ware- 
house certificates  attached.  .Two  of  the  witnesses,  cashiers,  testified 
that  it  is  the  custom  of  business  houses  to  surrender  all  evidences  of 
ownership  annexed  to  the  draft,  immediately  after  its  acceptance,  un- 
less instruction  is  given  not  to  deliver  them  before  its  payment.  Three 
other  witnesses,  also  cashiers,  testify  that  their  respective  banks  would 
not  deliver  the  warehouse  certificates  or  bills  of  lading  attached,  on 
the  acceptance  of  the  draft,  unless  so  instructed  by  the  party  by  whom 
sent. 

The  sale  had  been  agreed  upon.  The  remaining  conditions  to  per- 
fect it  were  the  acceptance  of  the  draft  by  the  drawee,  and  the  trans- 
fer of  the  thing  sold  into  the  possession  of  the  buyer.  The  seller  is 
bound  to  deliver  the  thing  which  he  sells,  whether  sold  for  cash  or 
on  credit;  in  case  of  non-delivery,  the  seller  is  liable  to  damages  if 
fany  be  thereby  occasioned.  The  term  given  for  payment  will  not  re- 
lease the  vendor  from  his  obligation,  unless  since  the  sale  the  buyer 
has  become  a  bankrupt,  or  is  in  a  state  of  insolvency. 

The  insolvency  of  the  drawees,  at  the  time  of  the  acceptance  of  the 
drafts,  is  not  an  issue  of  the  case.  The  allegation  and  the  proof  do  not 
raise  that  question.  It  is  the  duty  of  the  collecting  agent,  immediately 
after  receiving  a  bill  for  collection,  to  take  the  steps  necessary  to  its 
prompt  acceptance,  and,  if  the  instrument  be  not  accepted,  he  must 


Sec.  8)   ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF      199 

take  the  necessary  step  to  fix  the  Hability  of  the  drawee.  If  he  fails, 
he  becomes  Hable. 

In  order  to  obtain  the  acceptance  of  the  drawee,  should  he  d'ecline, 
unless  there  are  conditions  to  the  contrary,  of  which  he  is  advised,  he 
must  deliver  the  warehouse  receipts  attached.  If  he  retains  them,  he 
fails  to  make  the  delivery  of  the  property  the  seller  is  bound  to  make. 
He  retains  the  property  without  any  instructions  from  the  seller. 
Without  delivery  of  the  property,  the  drawee's  acceptance  would  be 
without  consideration,  and  his  draft  would  be  placed  in  commerce 
without  his  having  received  anything.  j 

The  acceptance  of  the  draft  makes  the  drawee  the  principal  debtor. 
As  this  draft  was  made  payable  one  day  after  sight,  with  the  three 
days  of  grace,  it  was  demandable,  as  to  its  payment,  in  four  days.  It 
was  not  a  cash  sale ;  the  records  do  not  disclose  that  the  contract 
implied  a  sale  for  cash. 

Plaintiffs'  counsel  argues  as  if  it  was  an  unavoidable  inference,  that 
should  have  controlled  the  action  of  the  defendant.  The  general  pur- 
pose of  the  law  of  negotiable  paper  and  the  good  of  commerce  require 
exactness  and  certainty.  The  contract  is  well  defined.  It  must  be 
executed  promptly  and  accurately.  A  sale  on  credit  will  not  give 
rise  to  the  presumption  of  any  intended  cash  sale. 

The  restricted  indorsement  is  relied  upon  by  plaintift's.  The  in- 
dorsement "for  collection"  does  not  pass  the  title  or  the  right  to  the 
proceeds  of  the  paper,  but  it  makes  the  indorsee  or  collecting  agent 
the  trustee  of  the  holder,  and  as  such  he  cannot  be  rendered  liable  if 
he  complies  with  an  agreement  made  manifest  by  the  contract.  From 
Tiedman  on  Commercial  Paper  (page  494)  we  copy:  "But  where  the 
bill  of  exchange  is  payable  in  the  future,  in  absence  of  special  agree- 
ment, the  bill  of  lading  is  to  be  delivered  to  the  vendee  upon  his  ac- 
ceptance of  the  bill  of  exchange  according  to  its  tenor,  and  the  holder 
cannot  insist  upon  holding  it  until  the  bill  of  exchange  is  paid.  The 
drawee  of  the  bill  of  exchange  may  refuse  to  accept,  unless  the  bill 
of  lading  is  surrendered  to  him." 

It  was  held  in  National  Bank  v.  Merchants'  Bank,  91  U.  S.  92,  23 
ly.  Ed.  208, — an  analogous  case, — that,  in  the  absence  of  instructions, 
the  plaintiff  in  error  was  justifiable  in  having  surrendered  the  bill 
of  lading  annexed  to  the  bill  of  acceptance.  It  is  difficult  to  con- 
ceive of  any  other  meaning  of  the  bill.  We  abbreviate  from  that 
opinion :  If  the  drawee  had  given  a  promissory  note  for  the  goods, 
payable  at  the  expiration  of  the  stipulated  credit,  it  is  clear  that  the 
vendor  could  not  retain  possession  of  the  property,  after  receiving 
the  note  for  the  price.  The  consideration  of  the  sale  is  the  note.  The 
acceptor  of  a  bill  of  exchange  stands  in  the  same  position  as  the  maker 
of  a  promissory  note.  If  he  is  denied  possession  until  payment,  the 
transaction  ceases  to  be  what  it  was  intended,  and  is  converted  into  a 
cash  sale.     The  purchaser  of  property  on  credit  has  a  right  to  imme- 


1 


200      ISSUE  OF  DOCUMENT  OF  TITLE TRANSFER  THEREOF    (Ch.  2 

cliate  possession,  unless  there  be  a  special  agreement  that  it  shall 
be  retained  by  the  vendor.  Such  an  agreement  is  not  to  be  presumed. 
The  collecting  agent  has  no  right  to  assume  that  the  vendee's  term 
of  credit  expires  before  he  has  the  goods,  and  require  him  to  accept 
the  vendor's  draft,  and  only  upon  his  engagement  to  deliver  at  a  fu- 
ture time. 

With  reference  to  the  authority  of  the  agent,  who  was  intrusted 
(as  was  the  agent  in  the  case  at  bar)  with  a  draft  "for  collection," 
the  court  holds  that  the  instruction  means  simply  to  rebut  the  infer- 
ence from  the  indorsement  that  the  agent  is  the  owner  of  the  draft ; 
that  the  instructions  were  to  collect  the  money;  and,  if  the  drawee 
is  not  bound  to  accept  without  surrender,  it  is  the  duty  of  the  agent 
to  make  the  surrender.  "The  drafts  were  all  time  drafts."  One  was 
drawn  at  sight ;  but  in  Massachusetts,  says  the  court,  such  drafts  are 
entitled  to  grace,  and  in  consequence  the  court  classes  it  as  a  "time 
draft." 

In  Lanfear  v.  Blossman,  1  La.  Ann.  148,  45  Am.  Dec.  76,  it  was 
decided  that  the  holder  of  a  bill  of  exchange  cannot,  in  the  absence 
of  proof  of  any  local  usage  to  the  contrary,  or  of  the  imminent  in- 
solvency of  the  drawee,  require  the  latter  to  accept  the  bill  of  ex- 
change, and  he,  as  holder,  retain  the  bill  of  lading  attached.  This 
decision  is  favorably  commented  upon  by  Justice  Strong,  the  organ 
of  the  court,  in  the  case  to  which  we  have  just  referred. 

It  is  pleaded  that  plaintiffs'  claim  is  sustained  by  the  local  custom 
of  merchants,  and  testimony  was  heard  in  support  of  the  plea.  The 
principle  upon  which  such  .  evidence  is  to  be  considered  is  that  the 
parties  meant,  when  they  sent  the  draft,  to  let  the  collecting  bank  fol- 
low the  local  custom  and  usage,  and  that,  therefore,  instructions  were 
unnecessary.  It  is  not  proven  that  plaintiffs  knew  of  any  such  local 
usage  and  custom,  nor  is  it  at  all  manifest  that  there  is  any  local 
custom  as  contended  by  plaintiffs. 

Analysis  of  the  testimony  leads  to  the  conclusion  that  it  is  not 
customary  to  retain  warehouse  receipts  and  bills  of  lading  attached  to 
time  drafts,  after  acceptance.  The  individual  instances  proven  do  not 
have  the  force  of  custom.  They  are  not  the  result  of  acts  repeated, 
"which  have  acquired  the  force  of  a  tacit  and  common  consent." 
Civil  Code,  art.  3.  It  is  not  the  settled  custom.  If  it  were,  it  would  be 
inconsistent  with  jurisprudence  established  by  a  number  of  trust- 
worthy decisions  w^hich  exclude  such  a  custom. 

The  judgment  appealed  from  is  affirmed,  at  plaintiff's'  costs. *^ 

45  See  McArthur  Co.  v.  Old  Second  Nat.  Bank,  122  Mich.  223,  81  N.  W.  92 
(1899). 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  201 

SECTION  9.— EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR 


WILKINSON  V.  KING. 

(Nisi  Pl-ius,  1809.     2   Camp.  335.) 

Trover  for  a  quantity  of  lead. 

The  plaintiff  had  sent  the  lead  in  question  to  the  wharf  of  one  Ellil 
in  the  Borough  of  Southwark,  there  to  remain  till  it  should  be  sold. 
Ellil  was  accustomed  to  sell  lead  from  this  wharf ;  but  had  no  author- 
ity whatever  to  sell  the  lead  in  question,  and  never  had  sold  any  for 
the  plaintiff  before.  However,  he  sold  this  lead  to  the  defendants, 
who  bought  it  bona  fide  as  his  property,  and  paid  him  for  it  by  a 
bill  of  exchange. 

Garrow  contended  that  this  sale  had  taken  place  in  market  overt, 
and  had  transferred  the  property  in  the  lead  to  the  defendants.  The 
spot  where  the  transfer  was  made  was  in  the  Borough  of  Southwark, 
which  must  be  considered  a  part  of  the  metropolis ;  and  it  was  laid 
down  in  the  books  on  this  subject,  that  in  London,  every  shop  in 
which  goods  are  publicly  exposed  to  sale,  is  market  overt  for  such 
things  as  the  owner  professes  to  trade  in,  and  that  though  in  the 
country,  market  overt  is  only  on  the  special  days  when  the  market  is 
held  by  charter  or  prescription,  yet  in  London  every  day,  except  Sun- 
day, is  market  day.  Therefore,  this  lead  having  been  sold  to  the  de- 
fendants by  Ellil  at  his  wharf,  where  he  dealt  in  lead,  became  their 
property,  and  the  plaintiff  must  seek  his  remedy  against  Ellil,  whom 
he  had  enabled  to  commit  the  fraud,  out  of  which  the  action  arose. 
But 

Lord  Ellenborough  held,  that  the  sale  by  Ellil  did  not  change 
the  property  in  the  lead,  and  observed,  that  the  doctrine  contended 
for  would  give  wharfingers  the  dominion  over  all  the  goods  intrusted 
to  them;  but  that  a  wharf  could  not  be  considered,  even  in  London, 
as  a  market  overt  for  the  articles  brought  there.  Ellil  had  no  colour 
of  authority  to  sell  the  lead,  and  no  one  could  derive  a  good  title  to 
it  under  such  a  tortious  conversion. 

Verdict  for  the  plaintiff. 


PICKERING  V.  BUSK  et  al. 

(Court  of  King's  Bench,  1812.     15  East,  38.) 

Trover  for  hemp.  At  the  trial,  before  Lord  Ellenborough,  C.  J., 
at  the  sittings  after  Trinity  term  in  London,  it  appeared  that  Swal- 
low, a  broker  in  London,  engaged  in  the  hemp  trade,  had  purchased 
for  the  plaintiff,  a  merchant  at  Hull,  a  parcel  of  hemp  then  lying  at 
Symonds's  wharf  in  vSouthwark.     The  hemp  was  delivered  to  Swal- 


202  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Ch.  2 

low,  at  the  desire  of  the  plaintiff,  by  a  transfer  in  the  books  of  the 
wharfinger  from  the  name  of  the  seller  to  that  of  Swallow.  Shortly 
afterwards,  Swallow  purchased  for  the  plaintiff  another  parcel  of 
hemp,  lying  at  Brown's  quay,  Wapping,  which  latter  parcel  was  trans- 
ferred into  the  names  of  Pickering  (the  plaintiff)  or  Swallow.  Both 
these  parcels  of  hemp  were  duly  paid  for  by  the  plaintiff.  Swallow, 
however,  whilst  the  hemp  remained  thus  in  his  name,  having  con- 
tracted with  Hayward  &  Co.  as  the  broker  of  Blackburn  &  Co.  for 
the  sale  of  hemp,  and  having  none  of  his  own  to  deliver,  transferred 
into  the  names  of  Hayward  &  Co.  the  above  parcels  in  satisfaction  of 
that  contract,  for  which  they  paid  him  the  value.  Hayward  &  Co. 
shortly  after  became  bankrupts;  and  the  plaintiff,  discovering  these 
circumstances,  demanded  the  hemp  of  the  defendants,  their  assignees, 
and  upon  their  refusal  to  deliver  it,  the  present  action  was  brought. 

His  lordship  was  of  opinion  upon  this  evidence,  that  the  transfer 
of  the  hemp,  by  direction  of  the  plaintiff,  into  Swallow's  name,  au- 
thorized him  to  deal  with  it  as  owner,  with  respect  to  third  persons ; 
and  that  the  plaintiff,  who  had  thus  enabled  him  to  assume  the  appear- 
ance of  ownership  to  the  world,  must  abide  the  consequence  of  his 
own  act.  A  verdict  was  thereupon  found  for  the  defendants,  with 
liberty  to  the  plaintiff  to  move  to  set  it  aside. 

Lord  EllEnbo ROUGH,  C.  J.  It  cannot  fairly  be  questioned  in  this 
case  but  that  Swallow  had  an  implied  authority  to  sell.  Strangers 
can  only  look  to  the  acts  of  the  parties,  and  to  the  external  indicia  of 
property,  and  not  to  the  private  communications  which  may  pass  be- 
tween a  principal  and  his  broker ;  and  if  a  person  authorize  another 
to  assume  the  apparent  right  of  disposing  of  property  in  the  ordinary 
course  of  trade,  it  must  be  presumed  that  the  apparent  authority  is 
the  real  authority.  I  cannot  subscribe  to  the  doctrine,  that  a  broker's 
engagements  are  necessarily,  and  in  all  cases,  limited  to  his  actual 
authority,  the  reality  of  which  is  afterwards  to  be  tried  by  the  fact. 
It  is  clear  that  he  may  bind  his  principal  within  the  limits  of  the  au- 
thority with  which  he  has  been  apparently  clothed  by  the  principal  in 
respect  to  the  subject  matter;  and  there  would  be  no  safety  in  mer- 
cantile transactions  if  he  could  not.  If  the  principal  send  his  com- 
modity to  a  place,  where  it  is  the  ordinary  business  of  the  person  to 
whom  it  is  confided  to  sell,  it  must  be  intended  that  the  commodity 
was  sent  thither  for  the  purpose  of  sale.  If  the  owner  of  a  horse 
send  it  to  a  repository  of  sale,  can  it  be  implied  that  he  sent  it  thither 
for  any  other  purpose  than  that  of  sale?  Or  if  one  send  goods  to  an 
auction  room,  can  it  be  supposed  that  he  sent  them  thither  merely  for 
safe  custody?  Where  the  commodity  is  sent  in  such  a  way,  and  to 
such  a  place,  as  to  exhibit  an  apparent  purpose  of  sale,  the  principal 
will  be  bound,  and  the  purchaser  safe. 

The  case  of  a  factor  not  being  able  to  pledge  the  goods  of  his 
principal  confided  to  him  for  sale,  though  clothed  with  an  apparent 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  203 

ownership,  has  been  pressed  upon  us  in  the  argument,  and  consider- 
ably distressed  our  decision.  The  court,  however,  will  decide  that 
question  when  it  arises,  consistently  with  the  principle  on  which  the 
present  decision  is  founded.  It  was  a  hard  doctrine  when  the  pawnee 
was  told  that  the  pledger  of  the  goods  had  no  authority  to  pledge 
them,  being  a  mere  factor  for  sale ;  and  yet  since  the  case  of  Paterson 
V.  Tash,  that  doctrine  has  never  been  overturned.  I  remember  Mr. 
Wallace  arguing  in  Campbell  v.  Wright,  4  Burr.  2046,  that  the  bills 
of  lading  ought  to  designate  the  consignee  as  factor,  otherwise  it  was 
but  just  that  the  consignors  should  abide  by  the  consequence  of  hav- 
ing misled  the  pawnees.  The  present  case,  however,  is  not  the  case 
of  a  pawn,  but  that  of  a  sale  by  a  broker  having  the  possession  for 
the  purpose  of  sale.  The  sale  was  made  by  a  person  who  had  all 
the  indicia  of  profiprty :  the  hemp  could  only  have  been  transferred 
into  his  name  for  the  purpose  of  sale ;  and  the  party  who  has  so  trans- 
ferred it  cannot  now  rescind  the  contract.  If  the  plaintiff  had  in- 
tended to  retain  the  dominion  over  the  hemp,  he  should  have  placed 
it  in  the  wharfinger's  books  in  his  own  name. 

Le  Blanc,  J.  The  law  is  clearly  laid  down,  that  the  mere  posses- 
sion of  personal  property  does  not  convey  a  title  to  dispose  of  it;  and, 
which  is  equally  clear,  that  the  possession  of  a  factor  or  broker  does 
not  authorize  him  to  pledge.  But  this  is  a  case  of  sale.  The  ques- 
tion, then,  is,  whether  Swallow  had  an  authority  to  sell.  To  decide 
this,  let  us  look  at  the  situation  of  the  parties.  Swallow  was  a  gen- 
eral seller  of  hemp :  the  hemp  in  question  was  left  in  the  custody 
of  the  wharfingers,  part  in  the  name  of  Swallow,  and  part  in  the 
name  of  the  plaintiff  or  Swallow,  which  is  the  same  thing.  Now  for 
what  purpose  could  the  plaintiff  leave  it  in  the  name  of  Swallow,  but 
that  Swallow  might  dispose  of  it  in  his  ordinary  business  as  broker: 
if  so,  the  broker  having  sold  the  hemp,  the  principal  is  bound.  This 
is  distinguishable  from  all  the  cases,  where  goods  are  left  in  custody 
of  persons,  whose  proper  business  it  is  not  to  sell,** 


LEVI  et  al.  v.  BOOTH. 

(Court  of  Appeals  of  Maryland,  1882.     58  Md.  .305.  42  Am.  Rep.  332.) 

Alvey,  J.*^  In  this  case  it  appears  that  the  plaintiff  was  the  owner 
of  a  valuable  diamond  ring,  and  he  placed  it  in  the  hands  and  posses- 
sion of  a  party  by  the  name  of  De  Wolff,  a  dealer  and  trader  in  jew- 
elry, for  the  purpose  of  obtaining  a  match  for  it,  or,  failing  in  that, 
to  get  an  oft"er  for  it ;  and  there  is  nothing  in  the  proof  to  show  that 
it  was  given  into  the  possession  of  De  Wolff  for  any  other  purpose,, 
or  that  he  was  in  any  manner  authorized  to  sell  it. 

*6  Concurring  opinious  were  delivered  by  Grose  and  Bayley,  JJ. 
*7  The  statement  of  facts  and  part  of  the  opinion,  are  omitted. 


204  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Ch.  2 

The  defendants  were  pawnbrokers,  and  dealt  in  articles  of  jewelry. 
De  Wolflf  dealt  with  them,  and  made  purchases  on  credit,  and  settled 
from  time  to  time;  and  among  other  articles  of  jewelry,  he  purchased 
diamond  rings,  earrings,  studs,  watches,  etc.,  and  became  considerably 
indebted  to  the  defendants.  He  appears  to  have  been  a  sort  of  street 
peddler  of  articles  of  jewelry, — going  from  place  to  place  and  dispos- 
ing of  his  articles  upon  the  best  terms  he  could  make.  He  had  no 
shop  or  established  place  of  business. 

On  the  part  of  the  defendants  the  evidence  tended  to  show,  that 
De  Wolff  sold  the  ring  to  Henry  Levi,  one  of  the  defendants,  for  a 
certain  price, — part  paid  in  cash,  and  the  other  part  in  goods.  But, 
on  the  part  of  the  plaintiff,  proof  was  given,  that  before  such  alleged 
sale,  Henry  Levi  had  been  informed  that  the  ring  belonged  to  the 
plaintiff,  and  that  De  Wolff  had  no  power  or  authprity  to  sell  it.  De 
Wolff,  as  witness,  proved  that  he  left  the  ring  with  Henry  Levi  to 
obtain  an  offer  for  it,  but  with  no  authority  to  sell  it;  while,  on  the 
other  hand,  Henry  Levi  testified  that  he  purchased  the  ring  of  De 
Wolff,  supposing  him  to  have  been  the  real  owner  of  it.  It  was  also 
proved,  by  the  admission  and  statement  of  Henry  Levi,  when  demand 
was  made  of  the  defendants  by  the  plaintiff  for  the  ring,  that  the  ring 
had  been  sold  to  some  person  whose  name  he  did  not  know  or  could 
not  furnish. 

The  plaintiff  brought  his  action  in  trover  for  the  conversion  of  the 
ring,  and  recovered  a  verdict  and  judgment  for  the  supposed  value 
thereof. 

At  the  trial,  upon  the  evidence  offered,  the  plaintiff  submitted  two 
prayers  for  instruction  to  the  jury,  and  they  were  both  granted;  and 
the  defendants  submitted  six  prayers,  all  of  which  were  refused ;  and 
to  the  rulings  of  the  Court  in  respect  to  these  several  prayers,  the  de- 
fendants excepted. 

Upon  these  prayers  thus  submitted,  three  principal  questions  are 
presented : 

1st.  Supposing  it  to  be  true,  as  contended  by  the  defendants,  that 
De  Wolff'  did  sell  the  ring  to  Henry  Levi,  one  of  the  defendants,  as 
if  he  were  the  owner  thereof,  when  in  fact  he  was  not  the  owner, 
and  had  no  express  authority  to  sell  it,  whether,  under  the  facts  dis- 
closed in  evidence,  such  sale  was  good  and  effective  at  the  common 
law,  as  between  the  defendants  and  the  real  owner?     H  not, 

2d.  Whether  such  sale  was  good  and  eft'ective,  in  view  of  the  facts 
disclosed,  as  between  the  real  owner  of  the  ring  and  the  defendants, 
under  the  provisions  of  what  is  known  as  the  Factors'  Act,  Code,  art. 
3,  §  4?    And, 

3d.  If  neither  of  the  defendants  acquired  title  to  the  ring,  whether, 
under  the  facts  of  the  case,  there  was  such  conversion  thereof  by  the 
defendants,  or  one  of  them,  as  would  entitle  the  plaintiff  to  recover? 

L  It  is  certainly  a  well  established  principle  of  the  common  law, 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  205 

founded,  as  it  would  seem,  upon  a  maxim  of  the  civil  law,  "nemo  plus 
juris  in  alium  transferre  potest  quam  ipse  habet,"  that  a  sale  by  a 
person  who  has  no  right  or  power  to  sell,  is  not  effective  as  against 
the  rightful  owner.  Sales  made  in  market  overt  were  an  exception 
to  this  general  rule;  but  the  old  Saxon  institution  of  market  overt 
has  never  been  recognized  in  this  State,  nor,  as  far  as  we  are  in- 
formed, in  any  of  the  United  States.  Browning  v.  Magill,  2  Har.  & 
J.  308 ;  Mowrey  v.  Walsh,  8  Cow.  (N.  Y.)  238 ;  Dame  v.  Baldwin, 
8  Mass.  518;  Ventress  v.  Smith,  10  Pet.  175,  9  L.  Ed.  382.  At  the 
common  law,  therefore,  a  person  in  possession  of  goods  cannot  confer 
upon  another,  either  by  sale  or  pledge,  any  other  or  better  title  to 
the  goods  than  he  himself  has.  To  this  general  rule  there  is  an  ap- 
parent exception  in  favor  of  bona  fide  purchasers  or  pledgees,  where 
the  party  in  possession  making  the  sale  or  pledge  has  a  title  defeasible 
on  account  of  fraud,  or  by  reason  of  a  condition  in  the  contract  of 
sale  under  which  he  holds.  Hall  v.  Hinks,  21  Md.  406;  Donaldson 
V.  Farwell,  93  U.  S.  631,  23  L.  Ed.  993. 

Therefore,  to  make  either  a  sale  or  pledge  valid  as  against  the  real 
owner,  where  the  sale  or  pledge  is  made  by  another  person,  it  is  in- 
cumbent upon  the  person  claiming  under  such  sale  or  pledge,  to  show 
that  the  party  making  it  had  authority  from  the  owner.  Cole  v. 
North-Western  Bank,  L.  R.  10  C.  P.  in  Ex.  Ch.  354,  363;  Johnson 
v.  Credit  Lyonnais,  2  C.  P.  Div.  224.  affirmed  on  appeal  3  C.  P.  Div. 
32.  If,  however,  the  real  owner  of  the  goods  has  so  acted  as  to  cloth 
the  seller  or  pledgor  with  apparent  authority  to  sell  or  pledge,  he  will 
even  by  the  common  law,  be  precluded  from  denying  as  against  those 
who  may  have  acted  bona  fide  on  the  faith  of  that  apparent  author- 
ity, that  he  had  given  such  authority,  and  the  result,  as  to  them,  is 
the  same  as  if  he  had  really  given  it ;  but  it  is,  of  course,  otherwise 
in  respect  to  those  who  may  have  acted  with  notice  of  the  want  or 
limitation  of  authority  in  point  of  fact. 

This  principle  of  estoppel,  as  applied  to  sales  or  pledges  of  goods 
or  merchandise,  is  aptly  and  completely  illustrated  in  the  familiar  and 
often  cited  case  of  Pickering  v.  Busk,  15  East,  38.  The  case  was  de- 
cided before  the  passage  of  any  of  the  English  Factor  Acts,  and  the 
facts  were,  that  the  true  owner  had  bought  parcels  of  hemp  through 
Swallow,  who  was  a  broker  and  an  agent  for  sale.  At  the  instance 
and  request  of  the  plaintiff,  the  real  owner,  the  hemp  was  transferred 
on  the  books  of  the  wharfinger  from  the  name  of  the  seller  to  that 
of  Svv'allow,  who,  without  express  authority  from  the  owner,  after- 
wards sold  it.  In  an  action  of  trover  by  the  real  owner,  to  recover 
for  the  conversion  of  the  hemp  thus,  sold,  it  was  held,  that  the  trans- 
fer on  the  books  of  the  wharfinger  by  the  direction  of  the  plaintiff  to 
the  name  of  Swallow,  authorized  the  latter  to  deal  with  the  hemp  as 
owner  with  respect  to  third  persons,  and  that  the  plaintiff',  who  had 
thus  enabled  Swallow  to  assume  the  appearance  of  ownership  to  the 


\ 


206  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Ch.  2 

world,  should  abide  the  consequence  of  his  own  act.  Lord  Ellen- 
borough  said :  "It  cannot  fairly  be  questioned  in  this  case  but  that 
Swallow  had  an  implied  authority  to  sell.  Strangers  can  only  look 
to  the  acts  of  the  parties,  and  to  the  external  indicia  of  property,  and 
not  to  the  private  communications  which  may  pass  between  a  prin- 
cipal and  his  broker;  and  if  a  person  authorize  another  to  assume 
the  apparent  right  of  disposing  of  property  in  the  ordinary  course  of 
trade,  it  must  be  presumed  that  the  apparent  authority  is  the  real  au- 
thority." And  in  conclusion  he  said :  "The  sale  was  made  by  a  per- 
son who  had  all  the  indicia  of  property :  the  hemp  could  only  have 
been  transferred  into  his  name  for  the  purpose  of  sale ;  and  the  party 
who  has  so  transferred  it  cannot  now  rescind  the  contract.  If  the 
plaintiff  had  intended  to  retain  the  dominion  over  the  hemp,  he  should 
have  placed  it  in  the  wharfinger's  books  in  his  own  name." 

The  same  principle,  though  applied  in  a  case  quite  different  in  its 
circumstances,  was  adopted  by  this  Court,  in  the  case  of  Lister  &  Sup- 
plee  V.  Allen,  31  Md.  543,  100  Am.  Dec.  78.  And  in  the  recent  Eng- 
lish cases  of  Cole  v.  Xorth-Western  Bank,  L.  R.  10  C.  P.  Ex.  Ch. 
354,  Johnson  v.  Credit  Lyonnais,  2  C.  P.  Div.  224,  affirmed  on  appeal 
3  C.  P.  Div.  32,  and  City  Bank  v.  Barrow,  5  App.  Cas.  H.  L.  664,  the 
same  principle,  with  its  proper  limitations,  was  fully  expounded,  both 
as  it  exists  at  the  common  law,  independently  of  statute,  and  as  it  has 
been  modified  by  what  is  known  as  the  Factors'  Acts ;  and  those  cases 
fully  and  clearly  maintain  the  principles  we  have  stated. 

In  this  case  there  is  no  evidence  that  there  was  any  express  author- 
ity by  the  plaintiff  to  De  Wolff  to  sell  the  ring;  though  there  is  evi- 
dence that  De  \\'olft"  was  authorized  to  procure  an  offer  for  it.  This, 
of  course,  reserved  to  the  plaintiff  the  right  to  accept  or  reject  the 
offer,  if  one  was  made.  With  this  limitation  of  authority,  there  can  be 
no  question  of  the  principle  propounded  in  the  plaintiff''s  first  prayer ; 
for  that  goes  upon  the  hypothesis  that  there  was  no  sale  in  fact  to 
Levi,  but  that  the  ring  was  simply  left  with  the  defendants,  and  that 
they  afterwards,  without  other  authority,  sold  it.  If  it  be  true  that 
there  was  no  sale  to  the  defendants,  or  one  of  them,  and  that  they, 
simply  having  the  possession,  and  without  authority  for  so  doing,  sold 
or  disposed  of  the  ring,  it  is  clear  they  were  wrong-doers,  and  there- 
fore liable  for  the  conversion.  This  was  the  theory  and  the  principle 
upon  which  the  plaintiff's  case  appears  to  have  been  presented  in  the 
Court  below. 

2.  But,  on  the  part  of  the  defendants,  the  case  was  presented  in  a 
different  aspect.  According  to  the  theory  of  the  fourth,  fifth,  and 
sixth  prayers  of  the  defendants,  there  was  a  sale  b)''  De  Wolff  to  the 
defendants,  or  one  of  them ;  and  the  Court  was  asked,  by  the  fourth 
and  fifth  prayers,  to  instruct  the  jury,  that  if  they  found  that  De 
Wolff'  was  a  dealer  in  jewelry,  and,  with  knowledge  of  that  fact,  the 
plaintiff'  intrusted  him,  or  intrusted  him  as  agent,  with  the  possession 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  207 

of  the  diamond  ring,  and  thereby  put  it  in  his  power  to  act  as  appar- 
ent owner  thereof,  and  that  the  defendants  acted  upon  the  faith  of 
such  apparent  ownership,  and  purchased  the  ring  for  vahie  and  with-' 
out  notice  of  the  ownership  of  the  plaintiff,  then  the  plaintiff  could  not 
recover. 

The  sixth  prayer  proposed  to  submit  to  the  jury  to  find,  whether 
the  ring  had  not  been  delivered  or  intrusted  to  De  Wolff  by  the  plain- 
tiff, with  authority  to  sell  or  dispose  of  it,  under  certain  limitations 
as  to  price.  But,  as  we  have  already  said,  there  was  no  evidence  of 
such  authority  being  delegated  to  De  Wolff,  and  the  Court,  therefore, 
would  not  have  been  justified  in  submitting  that  question  to  the  jury. 
That  prayer,  therefore,  was  properly  refused. 

But,  with  respect  to  the  propositions  involved  in  the  fourth  and  fifth 
prayers,  other  and  different  considerations  are  presented. 

Independently  of  the  provisions  of  the  statute  in  regard  to  the  deal- 
ing with  agents  and  factors,  it  is  very  clear,  upon  the  principles  that 
we  have  already  stated,  that  the  bare  possession  of  goods  by  one, 
though  he  may  happen  to  be  a  dealer  in  that  class  of  goods,  does  not 
clothe  him  with  power  to  dispose  of  the  goods  as  though  he  were 
owner,  or  as  having  authority  as  agent  to  sell  or  pledge  the  goods,  to 
the  preclusion  of  the  right  of  the  real  owner.  If  he  sells  as  owner 
there  must  be  some  other  indicia  of  property  than  mere  possession. 
There  must,  as  in  the  case  of  Pickering  v.  Busk,  supra,  and  more  ful- 
ly expounded  and  illustrated  in  Johnson  v.  Credit  Lyonnais,  supra, 
be  some  act  or  conduct  on  the  part  of  the  real  owner  whereby  the 
party  selling  is  clothed  with  the  apparent  ownership,  or  authority  to 
sell,  and  which  the  real  owner  will  not  be  heard  to  deny  or  question 
to  the  prejudice  of  an  innocent  third  party  dealing  on  the  faith  of 
such  appearances.  If  it  were  otherwise,  people  would  not  be  secure 
in  sending  their  watches  or  articles  of  jewelry  to  a  jeweller's  estab- 
lishment to  be  repaired,  or  cloth  to  a  clothing  establishment  to  be  made 
into  garments.  If  De  Wolff,  instead  of  being  a  mere  peddler  of  jew- 
elry, had  occupied  a  shop  where  he  carried  on  the  business  of  jeweller, 
and  the  ring  had  been  left  with  him,  either  to  be  mended,  or  reset, 
or  to  be  exposed  to  inspection  in  order  to  procure  an  offer  for  it,  with- 
out any  authority  to  sell  it,  we  suppose  it  to  be  clear,  that  the  owner 
could  not  have  been  divested  of  his  property  by  an  unauthorized  sale 
by  the  jeweller,  under  such  circumstances.  And  if  he  could  not  be 
divested  of  his  property  by  sale  under  such  circumstances,  we  do  not 
perceive  how  the  present  case  could  be  distinguished,  in  principle, 
from  that  just  stated. 

It  is  true,  the  general  rule  of  the  common  law,  that  a  person  in  the 
sale  or  pledge  of  goods  cannot  confer  a  greater  or  better  title  than  he 
himself  possesses,  has,  to  some  extent  and  under  special  circumstances, 
been  modified  by  statute.  The  principal  provisions  of  our  own  stat- 
ute, (Code  art.  3,)  in  relation  to  Agents  and  Factors,  are  substantially, 


\ 


208  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Cll.  2 

and  in  several  particulars  literally,  the  same  as  the  English  Statutes 
of  4  Geo.  IV,  ch.  83,  6  Geo.  lY,  ch.  94,  and  5  and  6  Vict.  ch.  39,  up- 
on the  same  subject.  By  these  statutes  a  more  extended  authority 
than  existed  by  the  rules  of  the  common  law  has,  for  the  facility  and 
convenience  of  commerce,  been  conferred  on  agents  and  factors,  or 
rather,  greater  protection  has  been  secured  to  vendees  and  pledgees 
dealing  with  such  agents.  The  general  effect  of  these  statutes  is  to 
render  valid  sales  and  pledges  made  by  factors  and  agents,  in  cases 
where  the  agency  may  not  be  known  to  the  buyer,  or  notwithstanding 
notice  of  the  fact  of  their  being  merely  agents  or  factors,  provided  the 
party  dealing  with  them  shall  not  have  notice  that  they  are  acting  with- 
out authority  or  mala  fide. 

Section  4  of  article  3  of  the  Code,  provides  that  any  person  may 
contract  with  any  agent  or  factor  intrusted  with  any  goods,  etc.  for 
the  purchase  thereof,  and  may  receive  from  and  pay  for  the  same  to 
such  agent;  and  such  contract  and  payment  shall  be  good  against  the 
owner,  notwithstanding  such  person  shall  have  notice  that  the  person 
making  the  contract  is  an  agent  or  factor ;  provided,  however,  that 
such  contract  and  payment  be  made  in  the  usual  course  of  business, 
and  that  such  person  shall  not,  when  the  contract  is  entered  into  or 
payment  made,  have  notice  that  the  agent  or  factor  is  not  authorized 
to  sell  the  goods,  or  to  receive  the  money  for  the  same. 

This  section  of  the  statute  does  not  appear  to  have  received  any  ex- 
press construction  by  this  Court ;  but  it  is  quite  apparent,  that,  in 
order  to  arrive  at  a  true  construction  of  it,  two  things  must  be  con- 
sidered; first,  whether  the  agent  intrusted  with  the  goods  and  making 
the  sale  thereof  was  of  the  class  or  species  contemplated  by  the  Act ; 
and,  secondly,  whether  the  contract  of  sale  was  made  in  the  usual 
and  ordinary  course  of  business  by  such  agent. 

The  similar  and  corresponding  section  in  the  English  Factors'  Act 
of  6  Geo.  IV,  ch.  94,  §  4,  and  as  extended  by  5  and  6  Vict.  ch.  39, 
has  been  the  subject  of  extensive  discussion  in  the  Courts  of  that 
country;  and  the  Courts  there  hold,  that  the  Factors'  Acts  have  no 
application  to  any  other  than  mercantile  transactions;  that  the  gen- 
erality of  the  terms,  "any  agent  or  factor  intrusted  with  goods,  mer- 
chandise," etc.  must  be  taken  in  a  restricted  sense;  and  that  while 
every  person  intrusted  by  the  owner  with  the  care,  storage,  or  carriage 
of  goods,  is,  in  one  sense,  an  "agent  intrusted  with  goods,"  yet  he  is 
not  an  agent  within  the  meaning  of  the  statutes.  ]\Ionk  v.  AMiitten- 
burg,  2  B.  &  Ad.  484;  Wood  v.  Rowecliffe,  6  Hare,  191. 

In  the  case  of  Heyman  v.  Flewker,  13  C.  B.  (N.  S.)  519,  J\Ir.  Justice 
Willes,  in  delivering  judgment,  says  that  what  the  cases  decide  "may 
be  stated  thus — that  the  term  'agent'  does  not  include  a  mere  servant 
or  care-taker,  or  one  who  has  possession  of  goods  for  carriage,  safe 
custody,  or  otherwise  as  an  independent  contracting  party;  but  only 
persons  whose  employment  corresponds  to  that  of  some  known  kind 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  209 

of  commercial  agent  like  tliat  class  (factors)  from  which  the  Act  has 
taken  its  name."  And  this  statement,  as  the  result  of  the  authorities, 
has  been  fully  and  without  qualification  adopted,  as  being  in  all  re- 
spects correct,  by  the  Court  of  review  in  Exch.  Ch.,  in  the  case 
of  Cole  V.  North- Western  Bank,  L.  R.  10  C.  P.  354,  and  in  Johnson 
V.  Credit  Lyonnais,  2  C.  P.  Div.  224,  affirmed  on  appeal  3  C.  P.  Div. 
32,  and  in  the  case  of  City  Bank  v.  Barrow,  5  App.  Cas.  Ho.  Lords, 
664. 

Now,  adopting  this  construction  which  has  been  placed  upon  the 
provision  of  the  English  statute  similar  to  our  own,  as  the  proper  con- 
struction of  the  terms  of  our  statute,  of  which  we  entertain  no  doubt, 
the  question  is,  whether  De  Wolff  was  an  agent  within  the  sense  and 
meaning  of  the  statute?  That  he  was  simply  a  dealer  in  jewelry 
would  seem  clearly  to  be  without  any  reliable  effect  upon  the  question 
of  authority ;  and  there  was  nothing  to  show,  and  the  prayers  did  not 
offer  to  submit  to  the  jury  to  find,  that  he  was  either  factor,  broker, 
auctioneer,  commission  agent,  or  other  agent  whose  business  it  was 
qua  agent  to  sell;  or  that  he  did  sell  the  diamond  ring  in  question 
in  the  usual  and  ordinary  course  of  business.  And  without  such  find- 
ing upon  the  construction  of  the  statute  just  stated,  the  sale  was  not 
within  the  protection  of  the  statute;  and  therefore  the  prayers  were 
properly  refused.     *     *     * 

Judgment  affirmed.*^ 


NIXON  V.  BROWN. 
(Superior  Court  of  Jutlicature  of  New  Hampshire,  1876.     57   N.  H.   34.) 

Trover,  for  a  horse.  The  action  was  sent  to  a  referee,  who  re- 
ported that  he  found  the  defendant  not  guilty,  &c.,  and  that  he 
recover  against  the  plaintiff  his  costs.  He  also  reported  the  follow- 
ing facts,  on  the  basis  of  which  he  held  that  the  plaintiff  could  not 
recover : 

"In  May,  1874,  one  Charles  Mason,  who  resided  in  Whitefield, 
N.  H.,  purchased  the  horse  in  question  of  one  Hubbard,  who  resided 
in  Dalton,  N.  H.,  for  the  plaintiff',  who  furnished  the  money  ($95.00) 
to  Mason  to  pay  for  the  same.  Mason  did  not  disclose  to  Hubbard 
that  he  was  purchasing  for  the  plaintiff,  but,  on  the  contrary,  gave 
Hubbard  to  understand  that  he  was  acting  for  himself,  and  took  a 
bill  of  sale  of  the  horse  from  Hubbard  to  himself.  Afterwards  Ma- 
son informed  the  plaintiff  that  he  had  made  the  purchase,  and  showed 
him  the  bill  of  sale,  and  told  him  he  could  give  him  a  bill  of  sale, 
and  that  would  make  it  all  right,  but  did  not  do   so ;    and  it  was 

4  8  See,  also,  Smith  v.  Clews,  114  N.  Y.  190,  21  N.  E.  160,  4  L.  R.  A.  392,  11 
Am.  St.  Rep.  627  (1889). 

Wood  w.  Sales — 14 


210  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Cll.  2 

tlien  arranged  that  Mason  should  bring  the  horse  to  the  plaintiff 
on  the  following  Monday,  this  being  on  Saturday;  and  it  was  fur- 
ther arranged  that  Mason,  after  he  had  brought  the  horse  to  the 
plaintiff,  should  take  him  and  keep  him,  and  drive  him  to  better 
break  him.  Mason  never  brouglit  the  horse  to  the  plaintiff,  but  on 
Tuesday — having  previous  to  said  Saturday  showed  the  horse  to 
the  defendant,  who  was  then  stopping  at  Whitefield,  and  represented 
to  the  defendant  that  he,  Mason,  owned  him — he  showed  the  de- 
fendant the  bill  of  sale  from  Hubbard,  and  finally  sold  the  horse  to 
the  defendant,  and  received  in  payment  $75.00,  and  then  left  for 
parts  unknown.    There  was  a  sufficient  demand  before  suit." 

At  this  September  term,  1875,  both  parties  moved  for  judgment 
on  the  report,  and  the  court  ordered  judgment  for  the  plaintiff,  to 
which  the  defendant  excepted,  and  tendered  this  bill  of  exceptions, 
which  was  allowed  by  Foster,  C.  J.  C.  C. 

Ladd,  J.  I  am  of  opinion  that  the  defendant's  exceptions  in  this 
case  must  be  sustained,  and  that  judgment  should  be  entered  in  his 
favor  upon  the  report  of  the  referee.  The  general  rule,  that  the 
possession  of  goods  by  a  bailee,  or  servant,  gives  him  no  power 
to  make  any  disposition  of  them,  except  by  virtue  of  actual  authority 
received  from  the  owner  (Perley,  J.,  in  Folsom  v.  Batchelder,  22 
N.  H.  51),  is  so  well  settled  as  to  be  quite  elementary.  But  there 
are  several  exceptions  to  this  rule,  quite  as  well  settled,  and  quite 
as  well  understood  as  the  rule  itself. 

One  relates  to  money,  bank  bills,  checks,  and  notes  payable  to 
the  bearer,  or  transferable  by  delivery.  The  cases  establishing  this 
exception,  commencing,  perhaps,  with  INIiller  v.  Race,  1  Burr.  452, 
are  very  numerous,  and  quite  uniform.  Another  exception,  in  Eng- 
land, relates  to  sales  in  market  overt.  But  as  we  have  no  markets 
overt  in  this  state  (Bryant  v.  Whitcher,  52  N.  H.  158),  that  exception 
has  no  existence  here. 

Another  is  where  the  possession  of  the  bailee,  from  the  nature 
of  his  employment,  implies  an  authority  to  sell,  as,  when  goods  are 
left  with  an  auctioneer  or  factor,  a  sale  by  such  bailee,  though  he 
had  no  actual  authority,  will  bind  the  owner.  Perley,  J.,  in  Folsom 
V.  Batchelder,  supra,  22  N.  H.  51,  and  cases  cited.  The  reason  given 
for  this  last  exception  is,  that  the  owner  has  allowed  the  bailee  in 
possession  to  hold  out  the  appearance  of  an  authority  to  sell,  which 
would  deceive  and  defraud  the  fair  purchaser  if  the  law  allowed  the 
validity  of  the  sale  to  be  questioned.  This  statement  of  the  reason, 
thus  clearly  and  succintly  given  by  the  late  Chief  Justice  Perley, 
suggests  the  ground  of  my  decision  in  this  case.  The  facts,  spe- 
cially stated  by  the  referee,  show  most  clearly  to  my  mind  that  the 
plaintiff  allowed  Mason,  while  he  retained  possession  of  the  horse, 
to  hold  out  the  appearance  of  ownership  in  himself,  and  so  of  an 
authority  to  sell,  which  would  deceive  and  defraud  a  fair  purchaser 
if  the  law  permitted  the  validity  of  the  sale  to  be  questioned. 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  211 

The  plaintiff's  counsel  undertakes  to  avoid  the  application  of  this 
just  and  wholesome  rule  by  saying  that  the  taking  of  the  bill  of 
sale  by  Mason  in  his  own  name  was  not  the  plaintiff's  act ;  and  this 
is  true.  Mason  bought  the  horse  for  the  plaintiff,  and  paid  for  it 
with  the  plaintiff's  money.  Why  he  concealed  the  fact  of  his  agency 
from  Hubbard  and  why  he  took  a  bill  of  sale  in  his  own  name  instead 
of  that  of  his  principal,  does  not  appear;  but  inasmuch  as  this  was 
all  contrary  to  the  truth  of  the  transaction,  it  is  fair  to  presume  that 
it  was  part  of  the  scheme  of  fraud  which  he  then  had  it  in  his  mind 
to  perpetrate.  So  far  there  was  certainly  no  act  of  the  plaintiff, 
and  nothing  to  prevent  the  application  of  the  general  rule,  which 
Chancellor  Kent  says  is  a  maxim  alike  of  the  civil  and  common  law, 
that  "nemo  plus  juris  ad  alium  transferre  potest  quam  ipse  habet." 
2  Kent's  Com.  324. 

But  the  report  states,  that  after  the  purchase  "Mason  informed  the 
plaintiff  that  he  had  made  the  purchase,  and  showed  him  the  bill 
of  sale,  and  told  him  he  could  give  him  a  bill  of  sale,  and  that 
would  make  it  all  right,  but  did  not  do  so;  and  it  was  then  ar- 
ranged that  Mason  should  bring  the  horse  to  the  plaintiff  on  the 
following  Monday,  this  being  on  Saturday ;  and  it  was  further  ar- 
ranged that  Mason,  after  he  had  brought  the  horse  to  the  plain- 
tiff, should  take  him  and  keep  him,  and  drive  him  to  better  break 
him,"  &c.  What  was  the  meaning  of  this  talk  about  Mason  giv- 
ing the  plaintiff  a  bill  of  sale  of  his  own  horse?  Why  did  he  not 
hand  over  the  bill  of  sale  he  took  from  Hubbard?  True,  it  is  not 
expressly  stated  by  the  referee  that  the  plaintiff  assented  to  this 
proposal  of  Mason,  which  if  it  had  been  carried  out  would  have  left 
Mason  with  the  highest  evidence  of  ownership  still  in  his  possession. 
But  the  inference  is  irresistible  that  he  did  assent  to  it,  at  least  so 
far  as  to  permit  Mason  to  go  away  with  Hubbard's  bill  of  sale,  hav- 
ing the  horse  still  in  his  possession. 

Why  did  not  the  plaintiff  take  from  his  agent  either  the  bill  of 
sale  or  the  horse?  Counsel  say  he  could  not  do  it,  perhaps,  with- 
out a  breach  of  the  peace.  Did  he  make  the  effort?  That  does  not 
appear.  Suppose  he  had  demanded  the  bill  of  sale,  and  his  agent 
had  refused  to  give  it  up  to  him,  would  he  have  suspected  then  that 
there  was  anything  unusual  or  wrong  in  Mason's  conduct?  If  Ma- 
son had  refused,  upon  demand,  to  give  up  either  the  horse  or  this 
evidence  of  title  in  himself,  what  was  there  to  hinder  the  plaintiff 
from  taking  the  animal  upon  a  writ  of  replevin  in  the  detinet,  under 
our  present  statute?  A  refusal  by  Mason  to  hand  over  both  the 
horse  and  the  bill  of  sale  upon  demand,  would  amount  to  a  conver- 
sion in  law,  and  would  in  fact  be  evidence  of  the  most  conclusive 
character  that  he  intended  to  appropriate  the  animal  to  his  own  use, 
regardless  of  the  plaintiff's  rights. 

Even  if  the  plaintiff's  suspicions  were  not  aroused  by  the  extraor- 
dinary circumstance   that  Mason   had  taken  the  bill  of  sale  in  his 


212  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Cll.  2 

own  name,  a  demand  of  this  sort  would  either  have  disarmed  his 
agent  of  the  power  to  deceive  and  defraud  innocent  purchasers,  or 
would  have  developed  a  purpose  to  appropriate  the  property,  which 
would  call  for  immediate  action  by  the  plaintiff  to  secure  himself, 
as  against  the  rapacity  of  a  thief.  Why  did  the  plaintiff  suffer  Mason 
to  go  away  with  the  bill  of  sale  and  the  horse  both  in  his  hands? 
No  answer  to  this  question  appears  in  the  case,  and  no  answer  at 
all  sufficient  to  my  mind  has  been  suggested  in  the  argument.  That 
act  of  the  plaintiff  was,  as  it  seems  to  me,  little  if  at  all  less  signifi- 
cant than  if  he  had  himself  executed  a  bill  of  sale  of  the  horse,  and 
delivered  it  to  INIason  along  with  the  animal.  At  any  rate,  I  see 
no  just  reason  why,  so  far  as  regards  the  rights  of  an  innocent  pur- 
chaser, it  should  not  be   followed  by  the  same  legal  consequences. 

At  the  argument  Mr.  Carpenter  put  this  supposed  case :  A.,  hav- 
ing sold  his  horse  to  B.,  delivers  the  animal,  together  with  a  bill  of 
sale  running  to  B.,  to  his  servant  or  agent,  to  be  carried  to  the  ven- 
dee. But  the  servant  on  the  way,  finding  a  customer  for  the  horse, 
produces  the  bill  of  sale,  represents  himself  to  be  the  person  there 
named  as  purchaser,  and  sells  the  horse  to  an  innocent  third  person. 
Of  course  there  could  be  no  question  of  the  right  of  the  owner  to 
recover  his  property,  under  that  state  of  facts,  against  such  inno- 
cent purchaser.  The  cases  covering  this  point  are  numerous,  of 
which  Saltus  v.  Everett,  20  Wend.  (N.  Y.)  267,  32  Am.  Dec.  541, 
is  a  good  example.  In  that  case  it  was  held  that  the  purchaser  of 
part  of  a  cargo  of  a  vessel  was  not  protected  against  the  claims 
of  the  real  owner,  although  the  purchase  was  made  under  a  bill 
of  lading,  regular  and  fair,  on  its  face — it  appearing  on  the  trial 
of  the  cause  that  the  master  of  the  vessel,  in  which  the  goods  were 
originally  shipped,  had  fraudulently,  at  an  intermediate  port,  trans- 
shipped the  goods  into  another  vessel,  and  procured  a  bill  of  lading 
in  his  own  name,  which  he  transferred  to  his  agents,  the  vendors. 

If  the  plaintiff  had  not  been  informed  of  the  fact  that  Mason  had 
taken  a  bill  of  sale  of  the  horse  in  his  own  name,  and  with  that 
knowledge  permitted  him  to  go  forth  clothed  with  all  the  indicia  of 
ownership,  and  so  completely  armed  for  the  commission  of  a  fraud, 
the  case  supposed  in  argument,  and  that  class  of  cases  of  which 
Saltus  V.  Everett  has  been  referred  to  as  the  type,  might  have  ap- 
phcation.  As  it  is,  I  think  they  do  not  apply  at  all.  I  regard  this 
act,  or  omission,  if  it  should  be  called  an  omission,  of  the  plaintiff 
as  decisive  of  the  case,  and  I  am  therefore  of  opinion  that  there 
should  be  judgment  on  the  report  for  the  defendant. 

Exceptions  sustained.*" 

49  See,  also,  O'Connor  v.  Oark,  170  Pa.  318,  32  Atl.  10-:9,  29  L.  E.  A.  607 
(1895). 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  213 

WARNER  V.  MARTIN. 
(Supreme  Court  of  the  riiited  States,  18.50.     11  How.  209.  13  Li.  Ed.  667.) 

Wayne,  J."^  We  state  such  circumstances  in  this  case  as  may  be 
necessary  for  the  appHcation  of  our  opinion  to  other  cases  of  a  Hke 
kind. 

Martin  &  Franklin  were  manufacturers  of  tobacco  in  Richmond,. 
Virginia.  They  were  in  the  habit  of  shipping  the  article  to  Charles 
Esenwein  in  New  York,  as  their  agent  and  factor.  In  April,  1841, 
they  made  the  first  shipment  upon  a  new  account  to  Esenwein,  and 
at  intervals  during  the  summer  made  other  consignments  to  him.  It 
was  their  practice  to  draw  upon  Esenwein,  payable  in  four  months, 
for  an  estimated  portion  of  the  proceeds  of  sale ;  among  other  drafts 
were  the  following: 

1841,  May  27,  at  four  months,  due  Sept.  30,  for  $800. 

"       June  12,  "  "  "  Oct.    15,    "       700. 

"       July    3,  "  "  "  Nov.  6,      "       300. 

"       July    29,  "  "  "  Dec.    2,     "       850. 

These  drafts  were  not  paid  by  Esenwein.  The  consignments  dur- 
ing the  period  when  the  drafts  were  drawn  were  162  half,  and  160 
whole  boxes  of  tobacco.  Esenwein's  entry  of  the  consignment  is : 
"Statement  of  tobacco  received  by  Charles  Esenwein  &  Co.  from 
Messrs.  Martin  &  Franklin  of  Richmond,  Virginia,  to  sell  for  their 
account." 

The  business  relation  between  them  in  this  transaction  was  that  of 
principal  and  factor,  unaffected  by  any  particular  instructions   from  j 
the  principals,  or  by  any  right  or  power  acquired  by  the  factor,  beyond  i 
his  general  commission  to  sell  the  tobacco,   according  to  the  usages' 
of  trade  in  the  place  to  which  it  had  been  sent  for  sale. 

In  August,  1841,  Esenwein  became  embarrassed  and  sailed  for 
Europe.  He  left  his  business  under  the  management  of  his  clerk, 
Engelbert  Caprano.  On  the  3d  of  September.  Esenwein  failed. 
Among  his  creditors  was  John  A.  Warner  of  Philadelphia.  A  short 
time  before  the  failure,  Mr.  Warner,  between  whom  and  Esenwein 
there  had  been  much  previous  dealing,  went  to  New  York.  He  then 
obtained  from  Caprano,  the  clerk,  from  the  store  of  Esenwein,  a 
quantity  of  tobacco,  cigars,  and  other  merchandise.  The  proof  in 
the  case  is,  that  the  tobacco  was  a  part  of  the  consignments  which 
had  been  made  within  the  dates  before  mentioned  by  Martin  &  Frank- 
lin to  Esenwein. 

Warner  says,  in  his  answer  to  the  bill  of  the  complainant,  that  the 
same  was  purchased  by  him  for  a  full  consideration  and  price,  in  like 
manner  as  he  had   frequently  purchased   from  Esenwein;    and   that 

6  0  Part  of  the  opinion  is  omitted. 


214  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Ch.  2 

he  did  not  know  that  the  tobacco  belonged  to  Martin  &  Frankhn. 
But  he  admits,  "the  insolvency  of  Esenwein  was  believed."  In  his 
amended  answer  he  says,  he  purchased  the  tobacco  bona  fide,  in  man- 
ner as  had  been  before  stated  by  him.  That  it  was  paid  for  after 
the  purchase,  by  his  paying  and  adjusting  $30,000  of  his  own  notes, 
which  he  had  loaned  to  Esenwein,  by  his  paying  and  redeeming  them 
Subsequently,  in  three  days  after  Esenwein's  failure,  Heald,  Wood- 
ward &  Co.  of  Philadelphia,  bought  from  Warner  258  boxes  of  to- 
bacco, know^n  as  ^Martin's  tobacco.  The  proof  in  the  case  is,  that  it 
was  a  part  of  that  which  Warner  had  obtained  from  Esenwein's  clerk, 
which  had  been  consigned  to  Esenwein  by  Martin  &  Franklin,  as  al- 
ready stated.  They  aver,  and  there  is  no  reason  or  cause  to  doubt  it, 
that  they  purchased  from  Warner  fairly,  and  for  full  value;  that  they 
had  no  knowledge  whatever  at  the  time,  that  the  tobacco  or  any  part 
of  it  belonged  to  the  complainants ;  nor  had  they  any  reason  to  believe 
or  know  it.  Their  contract,  howeVer,  with  Warner,  was  rescinded  in 
part.  They  received  from  him  only  124  boxes,  instead  of  the  258 
which  had  been  sold  to  them.     *     *     * 

The  exact  questions  raised  by  the  record  are,  whether  or  not  the 
transfer  of  the  tobacco  to  Warner  divested  the  plaintiff's  ownership 
of  it;  and  whether  or  not  Warner's  sale  of  a  part  of  it  to  Heald, 
Woodward  &  Co.,  for  a  full  consideration,  without  any  knowledge 
upon  their  part  of  the  plaintiff's  interest  when  they  bought  from 
Warner,  gave  to  them  a  property  in  Jt.     *     *     * 

On  either  of  the  grounds  already  mentioned,  the  plaintiff  would  be 
entitled  to  recover  from  the  defendants  in  this  case.  But  there  is  a 
third,  which  shall  be  stated  in  connection  with  other  points  respecting 
principals  and  factors,  which  it  will  not  be  out  of  place  to  notice. 
A  factor  or  agent  who  has  power  to  sell  the  produce  of  his  principal, 
ihas  no  power  to  affect  the  property  by  tortiously  pledging  it  as  a 
security  or  satisfaction  for  a  debt  of  his  own,  and  it  is  of  no  conse- 
quence that  the  pledgee  is  ignorant  of  the  factor's  not  being  the 
owner.  Paterson  v.  Tash,  Str.  1178;  Maanss  v.  Henderson,  1  East, 
ZZ7 ;  Newsom  v.  Thornton,  6  East,  17;  2  Smith,  207;  McCombie 
V.  Davies,  6  East,  538 ;  7  East,  5 ;  Daubigny  v.  Duval,  5  T.  R.  604 ; 
1  Maule  &  Selw.  140,  147;  2  Stark.  539;  Guichard  v.  Morgan,  4 
Moore,  36;   2  Brod.  &  Bing.  639;   2  Ves.  Jr.  213. 

When  goods  are  so  pledged  or  disposed  of,  the  principal  may  re- 
cover them  back  by  an  action  of  trover  against  the  pawnee,  without 
tendering  to  the  factor  what  may  be  due  to  him,  and  without  any 
tender  to  the  pawnee  of  the  sum  for  which  the  goods  were  pledged, 
Daubigny  v.  Duval,  5  T.  R.  604;  or  without  any  demand  of  such 
goods,  6  East,  538;  12  Mod.  514;  and  it  is  no  excuse  that  the  pawnee 
was  wholly  ignorant  that  he  who  held  the  goods  held  them  as  a  mere 
agent  or  factor.  Martini  v.  Coles,  1  Maule  &  Selw.  140,  unless,  indeed, 
where  the  principal  has  held  forth  the  agent  as  the  principal,  6  Maule 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  215 

&  Selw.  147.  But  a  factor,  who  has  a  lien  on  the  goods  of  his  prin- 
cipal, may  deliver  them  over  to  a  third  person,  as  a  security  to  the 
extent  of  his  lien,  and  may  appoint  such  person  to  keep  possession  of 
the  goods  for  him.  In  that  case,  the  principal  must  tender  the  amount 
of  the  lien  due  to  the  factor,  before  he  can  be  entitled  to  recover 
back  the  goods  so  pledged.  Hartop  v.  Hoare,  Str.  1187;  Daubigny  v. 
Duval,  5  T.  R.  604;  6  East,  538;  7  East,  5;  3  Chitty's  Com.  Law, 
193. 

So  a  sale  upon  credit,  instead  of  being  for  ready  money,  under  a 
general  authority  to  sell,  and  in  a  trade  where  the  usage  is  to  sell 
for  ready  money  only,  creates  no  contract  between  the  owner  and  the 
buyer,  and  the  thing  sold  may  be  recovered  in  an  action  of  trover. 
Paley,  Principal  and  Agent,  109;  12  Mod.  514.  Under  any  of  these 
irregular  transfers,  courts  of  equity  (as  is  now  being  done  in  this  case) 
will  compel  the  holder  to  give  an  account  of  the  property  he  holds. 

But  it  was  said,  though  a  factor  may  not  pledge  the  merchandise 
of  his  principal  as  a  security  for  his  debt,  he  may  sell  to  his  creditor 
in  payment  of  an  antecedent  debt.  No  case  can  be  found  affirming 
such  a  doctrine.  It  is  a  misconception,  arising  from  the  misapplica- 
tion of  correct  principles  to  a  case  not  belonging  to  any  one  of  them. 
The  power  of  the  factor  to  make  such  a  sale,  and  the  right  of  the 
creditor  to  retain  the  property,  has  been  erroneously  put  upon  its  be- 
ing the  usual  course  of  business  between  factors  to  make  a  set-off  of 
balances  as  they  may  exist  in  favor  of  one  or  the  other  of  them 
against  the  price  of  subsequent  purchases  in  their  dealings.  The 
difference  between  such  a  practice  and  a  sale  for  an  antecedent  debt 
must  be  obvious  to  every  one  when  it  is  stated.  In  the  one,  the  mutual 
dealing  between  mercantile  persons  who  buy  and  sell  on  their  own 
account,  and  who  also  sell  upon  commission  for  others,  is  according 
to  the  well-known  usage  of  trade.  Its  convenience  requires  that  such 
a  practice  shall  be  permitted.  But  it  must  be  remembered  it  is  an 
allowance  for  the  convenience  of  trade,  and  for  a  readier  settlement 
of  accounts  between  factors  for  their  purchases  from  each  other  in 
that  character.  It  does  not,  however,  in  any  instance,  bind  a  principal 
in  the  transfer  of  merchandise,  if  there  has  been  a  departure  from 
the  usages  of  trade,  or  a  violation  of  any  principle  regulating  the 
obligations  and  rights  of  principal  and  factor. 

Again,  it  has  been  supposed  that  the  right  of  a  factor  to  sell  the 
merchandise  of  his  principal  to  his  own  creditor,  in  payment  of  an 
antecedent  debt,  finds  its  sanction  in  the  fact  of  the  creditor's  belief 
that  his  debtor  is  the  owner  of  the  merchandise,  and  his  ignorance 
that  it  belongs  to  another ;  and  if  in  the  last  he  has  been  deceived, 
that  the  person  by  whom  the  delinquent  factor  has  been  trusted  shall 
be  the  loser.  The  principle  does  not  cover  the  case.  When  a  contract 
is  proposed  between  factors,  or  between  a  factor  and  any  other  cred- 
itor, to  pass  property  for  an  antecedent  debt,  it  is  not  a  sale  in  the 


216  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Cll.  2 

legal  sense  of  that  word  or  in  any  sense  in  which  it  is  used  in  refer- 
ence to  the  commission  which  a  factor  has  to  sell.  Williamson  v. 
Berry,  8  How.  495,  12  L.  Ed.  1170.  It  is  not  according  to  the  usage 
of  trade.  It  is  a  naked  transfer  of  property  in  payment  of  a  debt. 
Money,  it  is  true,  is  the  consideration  of  such  a  transfer,  but  no  money 
passes  between  the  contracting  parties.  The  creditor  pays  none,  and 
when  the  debtor  has  given  to  him  the  property  of  another  in  release 
of  his  obligation,  their  relation  has  only  been  changed  by  his  violation 
of  an  agency  which  society  in  its  business  relations  cannot  do  with- 
out, Avhich  every  man  has  a  right  to  use,  and  which  every  person  un- 
dertaking it  promises  to  discharge  with  unbroken  fidelity. 

When  such  a  transfer  of  property  is  made  by  a  factor  for  his  debt, 
it  is  a  departure  from  the  usage  of  trade,  known  as  well  by  the  cred- 
itor as  it  is  by  the  factor.  It  is  more;  it  is  the  violation  of  all  that 
a  factor  contracts  to  do  with  the  property  of  his  principal.  It  has 
been  given  to  him  to  sell.  He  may  sell  for  cash,  or  he  may  do  so  upon 
icredit,  as  may  be  the  usage  of  trade.  A  transfer  for  an  antecedent 
jdebt,  is  not  doing  one  thing  or  the  other.  Both  creditor  and  debtor 
/know  it  to  be  neither.  That  their  dealing  for  such  a  purpose  will  be 
a  transaction  out  of  the  usage  of  the  business  of  a  factor.  It  does 
not  matter  that  the  creditor  may  not  know,  when  he  takes  the  prop- 
erty, that  the  factor's  principal  owns  it;  that  he  believed  it  to  be  the 
factor's  in  good  faith.  His  dealing  with  his  debtor  is  an  attempt 
between  them  to  have  the  latter's  debt  paid  by  the  accord  and  satis- 
faction of  the  common  law.  That  is,  when,  instead  of  a  sale  for  a 
price,  a  thing  is  given  by  the  debtor  to  the  creditor  in  payment,  in 
which  we  all  know  that,  if  the  thing  given  is  the  property  of  another, 
there  will  be  no  satisfaction.  It  is  the  dation  en  payement  of  the 
civil  law  as  it  prevails  in  Louisiana,  which  is,  when  a  debtor  gives, 
and  the  creditor  receives,  instead  of  money,  a  movable  or  immovable 
thing  in  satisfaction  of  the  debt. 

Courts  of  law  and  courts  of  equity,  in  a  proper  case  before  either, 
will  look  at  such  a  transaction  as  one  in  which  both  principal  and 
creditor  have  been  deceived  by  the  factor,  so  far  as  the  deceit  is  con- 
cerned ;  but  it  will  also  be  remembered  in  favor  of  the  principal,  that 
the  creditor  has  acquired  the  principal's  property  from  his  factor, 
with  the  creditor's  knowledge,  out  of  the  usual  course  of  trade,  and 
will  reinstate  him  in  his  former  relation  to  his  debtor,  rather  than 
that  the  creditor  should  be  permitted  to  keep  the  property  of  another 
who  is  altogether  without  fault,  in  payment  of  his  debt.  As  to  a 
factor's  power  to  bind  his  principal  by  a  disposition  of  his  goods,  the 
common  law  rule  is,  "that,  to  acquire  a  good  title  to  the  employer's 
property  by  purchasing  it  from  his  agent,  such  purchase  must  have 
been,  either  in  market  overt  and  without  knowledge  of  the  seller's 
representative  capacity,  or  from  an  agent  acting  according  to  his  in- 
structions, or  from  one  acting  in  the  usual  course  of  his  employment^ 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  217 

and  whom  the  buyer  did  not  know  to  be  transgressing  his  instruc- 
tions," or  that  he  had  not  such  notice  as  the  law  deems  equivalent 
to  raise  that  presumption.  "The  reason  of  this  is  clear,  for  unless 
the  transaction  took  place  bona  fide  in  a  market  overt,  (in  which 
case  a  peculiar  rule  of  law  in  England  steps  in  for  its  protection.) 
an  agent  selling  without  express  authority  must,  that  his  acts  may  be 
supported,  have  sold  under  an  implied  one.  But  an  implied  one 
thereby  always  empowers  the  person  authorized  to  act  in  the  usual 
course  of  his  employment;  consequently,  if  he  sells  in  an  unusual 
mode,  he  could  have  no  implied  authority  to  support  his  act,  and  as  he 
had  no  express  one,  his  sale  of  course  falls  to  the  ground."  Smith's 
Mercantile  Law  (Amer.  Ed.)  118. 

The  defendants  are  not  within  the  compendious  summary  just 
stated.  There  has  been  a  transfer  of  property,  which  was  consigned 
to  a  factor  for  sale,  by  his  clerk,  to  a  creditor  of  his  employer,  who 
knew  his  debtor  to  be  in  failing  circumstances,  just  as  well  as  the  clerk 
himself  did;  and  of  property,  too,  which  the  clerk  knew  to  be  the 
property  of  the  plaintiff,  and  which  the  creditor  bargained  for  know- 
ingly out  of  the  usual  course  of  trade.  Nor  should  we  omit  to  say, 
that  Esenwein's  opinion  and  disapproval  of  what  had  been  done  by 
his  clerk  with  his  principal's  tobacco  are  significantly  disclosed  by  the 
fact,  that,  upon  his  return  from  Europe,  he  redeemed  so  much  of  it 
as  had  been  assigned  to  Mr.  Conolly  by  his  clerk  in  payment  of  a 
debt,  and  sold  and  remitted  the  proceeds  to  his  principals. 

By  the  common  law,  the  transfer  of  the  plaintiff's  tobacco  to 
Warner  cannot  be  maintained.  He  is  responsible  to  them  for  the 
value  of  so  much  of  it  as  was  not  transferred  by  him  to  Heald,  Wood- 
ward &  Co.  Heald,  Woodward  &  Co.  are  responsible  for  so  much 
of  it  as  Warner  transferred  to  them,  because  Warner,  having  no  prop- 
erty in  it,  could  not  convey  any  to  them.  But  Warner  is  answerable 
to  them  for  that  amount,  and  he  is  replaced  for  the  whole  as  a  cred- 
itor of  Esenwein,  just  as  he  was  before  the  transaction  occurred. 

The  application  of  these  principles  of  the  common  law  to  these 
parties,  if  it  needed  confirmation,  would  receive  it  from  the  statute 
of  New  York  of  April,  1830,  for  the  amendment  of  the  law  relative 
to  principals  and  factors  or  agents.  The  transfer  to  Warner  was  a 
New  York  transaction.  The  third  section  of  that  act  very  distinctly 
provides  for  those  cases  when  the  ownership,  by  the  factor,  of  goods 
which  he  contracts  to  sell,  shall  be  said  to  exist,  to  give  protection 
to  purchasers  against  any  claim  of  the  factor's  principal.  It  is  when 
he  contracts  for  any  money  advanced,  or  for  any  negotiable  instru- 
ment or  other  obligation  in  writing  given  for  merchandise,  upon  the 
faith  that  the  factor  is  the  owner  of  it.  The  concluding  words  of  the 
section  are,  "given  by  such  other  person  upon  the  faith  thereof." 

Three  misconstructions  of  that  act  have  been  prevalent,  but  they 
have  been  corrected  by  the  courts  of  New  York.     We  concur  with 


218  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Ch.  2 

them  fully.  One  was,  that  the  statute  altered  the  common  law,  so  as 
to  give  validity  to  a  sale  made  by  the  factor  for  an  antecedent  debt 
due  by  him  to  the  person  with  whom  he  contracts ;  another,  that  the 
statute  gave  to  a  purchaser  protection,  whether  he  knew  or  not  that 
the  goods  which  the  factor  contracted  to  sell  him  were  not  the  factor's, 
and  belonged  to  his  principal;  and  the  other,  that  the  concluding 
words,  "upon  the  faith  thereof,"  related  to  the  advance  made  upon 
the  goods,  and  not  to  the  property  which  the  factor  had  in  them.  Sim- 
ilar misconceptions  were  prevalent,  and  perhaps  still  prevail,  con- 
cerning the  corresponding  section  in  the  English  factor's  act,  Geo. 
IV,  c.  94,  1825.  The  alterations  of  the  common  law,  in  this  particu- 
lar, by  the  English  and  the  New  York  statutes,  were  suggested  by 
practical  and  experienced  merchants  in  both  countries,  to  meet  the 
exigencies  of  internal  trade  and  its  extension  between  nations.  They 
are  believed  by  their  operation  to  be  improvements  in  the  law  mer- 
chant. It  may  be  owing  to  a  misapprehension  of  those  acts,  that 
the  defendants  denied  to  the  plaintilTs  their  rights.  Fortunately  the 
law  secures  them,  and  the  case  settled  now  as  it  is  may  prevent  other 
controversies  like  it. 

We  shall  direct  the  decree  of  the  circuit  court  to  be  affirmed ;  and 
also  order  a  decree  to  be  entered  against  the  defendants,  that  each 
of  them  shall  pay  to  the  plaintiffs  the  value  of  the  tobacco  which 
the  defendants  respectively  retained,  with  interest  upon  the  same  as 
from  the  dates  of  the  transfers  of  it  to  them. 


ROMEO  v.  MARTUCCr. 

(Supreme  Court  of  Errors  of  Connecticut.  1900.     72  Conn.  504.  45  Atl.  1,  99, 
47  L.  R.  A.  601,  77  Am.  St.  Rep.  327.) 

HamERSLEY,  J.^^  The  finding  is  in  some  respects  strongly  sug- 
gestive of  bad  faith  on  the  part  of  the  defendant.  But  as  the  court, 
notwithstanding  the  suggestive  appearances,  finds  that  the  defendant 
paid  a  reasonable  price,  after  inquiry,  and  without  notice  of  defect  in 
title,  he  must  be  treated  as  an  innocent  purchaser  for  value.  We 
have  then  these  facts :  Ricciardelli  &  Bro.,  retail  grocers  in  New  Ha- 
ven, agreed  to  sell  on  commission  for  the  plaintiffs,  wholesale  grocers 
in  New  York,  a  quantity  of  groceries  valued  at  $559.  The  goods  were 
received  on  consignment  at  New  Haven  on  January  20th,  and  the 
same  day  the  Ricciardellis,  for  the  lump  price  of  $965,  sold  their  gro- 
cery store,  stock  (including  the  plaintiff's'  property),  fixtures,  house- 
hold furniture,  and  good  will  of  business,  to  the  defendant,  a  purveyor 
of  contract  laborers  in  New  York,  and  then  disappeared  without  ac- 
counting to  the  plaintiffs.    This  action  was  brought  the  next  day. 

There  is  no  doubt  as  to  the  relation  between  the  plaintiff's  and  the 

61  The  statement  of  facts  is  omitted. 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  219 

Ricciardellis.  It  is  that  of  principal  and  factor, — a  relation  long  re-  ) 
yarded  as  beneficial  in  the  transaction  of  business,  and  one  whose  le- 
gal  effect  has  been  defined  by  numerous  decisions.  Lawrence  v.  Bank, 
6  Conn.  521,  527.  The  property  consigned  is  bailed,  and  remains  in 
the  ownership  of  the  consignor  until  disposed  of  by  the  consignee  in 
pursuance  of  the  agency  established  by  the  fact  of  the  consignment. 
If  the  consignee,  in  violation  of  the  consignment,  and  out  of  the  usual 
course  of  business,  transfer  to  another,  the  consignor  is  entitled  to  re- 
take his  property,  notwithstanding  it  may  have  been  so  transferred  to 
an  innocent  purchaser  for  value.  This  principle  is  too  thoroughly  es- 
tablished to  permit  of  argument.  The  transfer  by  the  Ricciardellis 
was  m  plain  violation  of  the  consignment. 

No  serious  claim  to  the  contrary  is  made  or  can  be  maintained.  The 
only  real  question  is  whether  the  plaintififs  have  done  anything  which 
estops  them  from  setting  up  their  rights  as  consignors.  If  by  their 
voluntary  action  they  clothed  the  Ricciardellis  with  an  appearance  of  I 
ownership  beyond  that  involved  in  the  ordinary  contract  of  consign-j 
ment,  and  the  defendant  was  thereby  deceived  to  his  damage,  theyl 
are  estopped  from  denying  the  authority  thus  evidenced  by  their  acts. 
This  principle  is  rooted  in  justice,  and  has  been  applied  to  a  great 
variety  of  conditions.  Such  action  by  the  owner  of  property  may  fur- 
nish evidence  of  fraud,  and  the  question  of  estoppel  is  sometimes  con- 
fused with  that  of  fraudulent  transfer.  Possession  may  be  evidence  of 
fraud  when  it  conceals  the  usual  evidence  of  a  change  of  title.  This 
applies  especially  to  the  mortgage  or  pledge  of  personal  property, 
where  the  mortgagor  is  presumed  to  remain  owner  of  the  property  un- 
less there  is  a  change  of  possession.  But  it  is  dififerent  where  property 
known  to  belong  to  one  man  comes  into  the  possession  of  another. 
In  such  case  it  becomes  a  matter  of  inquiry  whether  he  has  borrowed 
it  or  hired  it  or  purchased  it,  and  this  ought  to  be  ascertained  by  him 
who  proposes  to  trust  his  property  upon  the  faith  of  this  appearance. 
Forbes  v.  Marsh,  15  Conn.  384,  397.  Accordingly  cases  of  conditional 
sale  made  bona  fide  have  been  held  good ;  and,  in  the  modern  and 
somewhat  perilous  enlargement  of  such  sales,  the  fact  of  actual  intent 
and  good  faith  is  made  the  test  of  the  transaction.  Lewis  v.  McCabe, 
49  Conn.  141,  155,  44  Am.  Rep.  217;  Mack  v.  Story,  57  Conn.  407, 
413,  18  Atl.  707. 

But  here  there  is  no  question  as  to  the  nature  of  the  transaction. 
It  is  the  ordinary  contract  of  consignment.  There  is  no  question  of 
fraud  on  the  part  of  the  owner.  The  good  faith  of  the  plaintiff's  con- 
duct is  neither  directly  nor  indirectly  impugned.  The  sole  claim  is  that 
he  has  "voluntarily  permitted  another  to  hold  himself  out  to  the 
world  as  being  the  true  owner,  and  for  this  purpose  intrusted  him  with 
the  exclusive  possession  or  other  indicia  of  title  under  circumstances 
which  would  naturally  tend  to  mislead."  The  cases  where  the  real 
owner  has  been  estopped  by  having  clothed  the  possessor  with  indicia 
of  title  for  such  purposes  and  under   such  circumstances  are  many. 


I 


II 


220  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Ch.  2 

"But  all  these  cases  proceed  upon  the  ground  that  the  owner  has  de- 
liberately assumed  a  false  position,  and  a  character  inconsistent  with 
that  of  owner,  which,  if  changed,  would  result  in  fraud  and  damage." 
They  have  no  application  to  a  case  where  the  acts  of  the  owner  are 
confined  to  those  incident  to  a  legitimate  bailment  or  consignment. 
"Every  borrower  or  bailee  for  hire  uses  the  thing  bailed,  in  many  re- 
spects, as  his  own,  and  his  conduct,  to  some  extent,  furnishes  a  false 
index  of  property ;  but  yet,  the  legal  powers  and  duties  of  bailee  being 
entirely  consistent  with  the  true  position  and  character  of  the  owner, 
the  rights  of  the  bailor  will  be  protected  against  the  abuse  of  the 
bailee's  powers,  though  he  were  to  sell  the  property  bailed  to  a  bona 
fide  purchaser."    Baldwin  v.  Porter,  12  Conn.  473,  482,  483. 

A  consignee  differs  from  an  ordinary  bailee  mainly  in  that  he  is 
authorized  to  sell  in  the  ordinary  course  of  business ;  but,  if  he  sell 
out  of  the  ordinary  course  of  business,  he  abuses  his  powers,  and 
against  this  abuse  the  consignor  is  protected,  like  any  other  bailor. 
When  a  mortgagee  leaves  the  property  mortgaged  in  the  possession  of 
the  mortgagor,  possession  under  such  circumstances  may  be  treated  as 
an  index  of  title.  It  is  inconsistent  with  the  real  transaction,  which 
demands  a  change  of  possession,  and  the  mortgagee  deliberately  puts 
himself  in  a  false  position.  But  in  the  case  of  a  consignment  the  re- 
verse is  true.  Possession  by  the  consignee  is  consistent  with  the  trans- 
action, and  is  evidence  of  the  authority  pertaining  to  that  transaction, 
but  furnishes  no  other  index  of  title  as  against  the  consignor.  Some 
act  of  the  consignor  inconsistent  with  the  true  relation  is  necessary  for 
that  purpose, — as  if  the  bill  for  goods  consigned  were  made  out  as  one 
for  goods  sold,  or  a  bill  of  lading  were  given  which  treats  the  con- 
signe°  as  owner  or  purchaser.  In  such  way  the  consignor  may  put 
himsejf  in  a  false  position,  so  that,  if  the  rights  of  an  innocent  pur- 
chaser intervene,  he  cannot  change  that  position  without  fraud  and 
damage.  There  may  be  other  acts  by  which  a  consignor  may  be  es- 
topped from  asserting  his  title,  but  they  must  be  equivalent  in  force 
to  the  ones  indicated. 

In  the  present  case  it  does  not  appear  whether  the  goods  consigned, 
and  received  on  the  day  of  the  sale,  had  been  unpacked  when  the  de- 
fendant first  examined  the  stock.  It  is  immaterial,  except  as  bear- 
ing on  the  good  faith  of  the  defendant.  But,  if  he  had  then  asked 
for  some  evidence  of  ownership,  he  could  only  have  been  shown  a 
bill  for  goods  consigned,  and  the  real  character  of  the  Ricciardellis' 
possession  would  have  been  apparent.  The  defendant  chose  to  rely 
on  the  authority  of  the  possessors  to  sell  in  their  retail  business  indi- 
cated only  by  the  possession  described.  He  would  have  been  protected 
in  a  purchase  within  the  scope  of  such  authority,  which  was  real  as 
well  as  apparent.  But  the  selling  out  of  the  whole  business  was  not 
within  the  scope  of  that  authority.  It  does  not  necessarily  follow  that 
a  retail  dealer,  authorized  in  the  ordinary  course  of  business  to  sell 
the  articles  on  his  shelves,  is  therefore  the  owner  of  the  whole  business 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  221 

and  every  article  in  his  possession.  If  he  attempts  to  sell  his  business.  I 
and  stock  as  a  single  chattel,  he  enters  upon  an  outside  and  independ-l 
ent  transaction.  The  purchaser  cannot  retain,  as  against  the  real  own- 
er, portions  of  that  stock  held  under  consignment,  unless  the  owner 
has  clothed  the  consignee  with  some  index  of  ownership  be3'ond  that 
incident  to  the  fact  of  a  consignment.  Where  a  principal,  with  full 
knowledge,  permits  his  factor  "to  transact  the  ordinary  business  of  a 
merchant  in  his  own  name,  he  would  even  then  be  bound  by  his  acts 
only  so  far  as  they  were  within  the  ordinary  mode  of  transacting  the 
particular  branch  of  business,  provided  there  were  no  circumstances  to 
show  that  he  permitted  him  to  use  his  own  name  with  a  view  of  im- 
posing upon  others."    Potter  v.  Dennison,  5  Gilman  (111.)  590,  599. 

The  plaintiff  has  done  nothing  to  mislead,  unless  every  consignment 
is  misleading.  He  gave  the  Ricciardellis  possession,  but  it  was  the 
possession  of  consignees  only.  He  knew  that  the  goods  were  to  be 
sold  by  the  consignees  in  their  retail  store  in  connection  with  their 
other  stock,  and  that  the  goods  were  to  be  sold  at  retail  in  the  name 
of  the  consignees ;  but  these  are  the  ordinary  incidents  of  a  consign- 
ment to  a  retail  merchant.  Ex  parte  Dixon,  4  Ch.  Div.  133,  136,  137; 
Slack  V.  Tucker,  23  Wall.  321,  330,  23  L.  Ed.  143;  Potter  v.  Denni- 
son, 5  Gilman  (111.)  598.  The  conduct  of  the  plaintiff  amounts  to  a 
consignment  of  his  goods  for  sale  in  the  ordinary  course  of  business, 
and  nothing  more.  The  title  cannot  be  defeated  by  any  disposition  of 
the  property  not  within  the  agency  established  by  such  consignment. 
A  consignee  cannot  transfer  the  property  in  payment  of  his  own  debt. 
Benny  v.  Pegram,  18  Mo.  191,  59  Am.  Dec.  298.  He  must  sell  in  the 
market  where  he  transacts  business.  Wootiers  v.  Kaufman,  JZ  Tex. 
395,  399,  11  S.  W.  390;  Catlin  v.  Bell,  4  Camp.  183;  Marr  v.  Barrett, 
41  Me.  403.  He  cannot  sell  by  way  of  barter.  Guerreiro  v.  Peile,  3 
Barn.  &  Aid.  616,  618.  He  cannot  pledge  the  goods  consigned.  Pater- 
son  V.  Tash,  Strange,  1178;  Kuckein  v.  Wilson,  4  Barn.  &  Aid.  443, 
447 ;  Kelly  v.  Smith,  1  Blatchf .  290,  293,  Fed.  Cas.  No.  7,675 ;  Gray 
V.  Agnew,  95  111.  315. 

To  turn  over  the  goods  consigned  to  another  by  a  sale  of  his  busi- 
ness and  stock  in  trade  is  as  distinctly  a  disposition  foreign  to  the  con- 
signment, and  for  the  benefit  of  the  consignee,  as  a  pledge,  or  sale  in    » 
payment  of  consignee's  debt,  or  a  barter.    "By  the  general  rule,  a  fac-l  I 
tor  cannot  bind  the  principal  by  a  disposition  of  his  property  out  of' 
the  ordinary  course  of  business."    Bank  v.  Heilbronner,  108  N.  Y.  439, 
444,  15  N.  E.  701;   Warner  v.  A/[artin,  11  How.  209,  224,  13  L.  Ed. 
667.    We  are  asked  to  treat  the  ordinary  incidents  of  a  bona  fide  con- 
signment as  sufficient  indicia  of  title  to  enable  the  consignee  to  bind  his 
principal  by  every  act  of  ownership  as  against  an  innocent  third  par- 
ty.    This  would  involve  the  reversal  of  the  whole  line  of  cases  by 
which  the  contract  of  consignment  has  been  recognized  and  defined. 

The  court  erred  in  overruling  the  claim  of  the  plaintiff  that  upon  the 
special  facts  found  the  goods  in  question  were  still  the  property  of 


222  EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  (Ch.  2 

the  plaintiff,  and  that  he  was  entitled  to  the  immediate  possession 
thereof.  There  is  error.  The  judgment  of  the  court  of  common  pleas 
is  reversed,  and  the  cause  remanded  for  further  proceedings  according 
to  law. 

Torrance  and  Baldwin,  JJ.,  concurred.     Andrews,  C.   J.,  and 
Hall,  J.,  dissented.^^ 


H.  A.  PRENTICE  CO.  v.  PAGE  et  al. 
DAVIS  V.   SAME. 

(Supreme  Judicial  Court  of  Ma.ssacliusetts,  1S95.     164  Mass.  27G.  41  N.  E.  279.) 

Two  actions  of  tort,  for  the  conversion  of  certain  personal  prop- 
erty. The  cases  were  tried  together  and  the  jury  returned  verdicts 
for  the  plaintiffs.  If  the  instruction  given  was  correct,  judgment 
was  to  be  ordered  on  the  verdicts ;  otherwise  the  verdicts  were  to  be 
set  aside  and  a  new  trial  granted. ^^ 

Morton,  J.  The  goods  which  are  the  subject  of  these  suits  were 
obtained  from  the  plaintiffs  by  one  Gregg  by  means  of  false  and 
fraudulent  misrepresentations  and  forged  conditional  contracts  of 
sale.  After  he  had  thus  obtained  the  goods,  Gregg  pledged  them  to 
the  defendants.  Although  there  is  nothing  in  the  report  of  the  pre- 
siding justice,  or  in  the  auditor's  report,  positively  showing  that  the 
defendants  took  them  in  good  faith,  it  is  assumed  in  the  instructions 
to  the  jury,  and  we  take  it  for  granted  that  they  did.  The  H.  A. 
Prentice  Company  also  "trusted  Gregg  personally  with  some  two 
thousand  dollars'  worth  of  merchandise,  and  charged  the  same  to 
him  in  the  regular  course  of  business" ;  but  it  is  expressly  stated  in 
the  report  of  the  presiding  justice  that  none  of  the  goods  which  are 
the  subject  of  these  suits  were  "ever  charged  to  him  or  purchased 
by  him  in  any  way,  but  were  all  delivered  to  said  Gregg,  upon  his 
representation  that  he  had  a  reliable  customer  for  them,"  and  we 
assume  were  all  accounted  for  by  him  by  forged  conditional  contracts 
of  sale.  The  facts  show  that  there  was  a  larcenous  taking  of  the 
goods  by  Gregg,  for  which  he  was  afterwards  convicted  and  sentenced. 

The  defendants,  in  substance,  requested  the  court  to  instruct  the 
jury  that  if  the  goods  were  intrusted  to  Gregg  to  sell  for  cash,  or  on 
conditional  contracts  of  sale,  the  defendants  were  protected  by  chap- 
ter 71,  Pub.  St.,  although  the  goods  were  obtained  from  the  plaintiff's 
by  Gregg  by  forgery  and  fraud. 

The  court  refused  to  give  this  instruction,  and  instructed  the  jury, 
in  effect,  that  in  order  to  protect  a  bona  fide  pledgee  under  chapter 
71  "the  goods  or  merchandise  in  the  hands  of  an  agent  must  have 
been  intrusted  to"  the  agent  "to  sell  and  dispose  of  in  the  ordinary 
course  of  business,  as  a  common-law  sale." 

52 A  di.sseuting  opinion  was  delivered  by  Hall,  J. 
63  The  statement  of  facts  is  abridged. 


Sec.  9)         EFFECT  OF  SALE  BY  BAILEE  OR  FACTOR  223 

Without  undertaking  to  say  that  intrusting  goods  or  merchandise 
to  an  agent  or  factor  to  sell  means,  under  all  circumstances,  such  a 
sale  as  defined  by  the  court,  we  think,  upon  the  undisputed  facts, 
that  the  plaintiffs  were  clearly  entitled  to  recover,  and  that,  therefore, 
the  instructions  could  have  done  no  harm  in  the  present  case. 

There  was  no  evidence  to  show  that  the  goods  were  intrusted  to 
Gregg  to  sell  for  cash,  and  therefore  so  much  of  the  request  as  re- 
lated to  that  was  inapplicable  to  the  case  before  the  court  and  jury. 

The  object  of  chapter  71,  Pub.  St.,  is  to  protect  parties  dealing  in 
good  faith  with  factors  or  agents  who  have  been  intrusted  with  goods 
or  merchandise  for  sale  or  consignment.  It  might  be  said  that  goods 
given,  as  these  were,  to  one  to  be  delivered  by  him  to  parties  who 
he  represented  had  purchased  them,  were  not  intrusted  to  him  for 
sale,  but  as  an  agent  for  delivery  merely.  But,  however  that  may  be, 
we  do  not  think  that  the  statute  applies  when  goods  or  merchandise 
have  been  procured,  by  the  agent  or  factor,  to  be  intrusted  to  him 
for  delivery,  under  what  purport  to  be  conditional  contracts  of  sale, 
and  in  consequence  of  what,  in  law,  constitutes  a  larceny  of  them 
on  his  part.  In  such  a  case  the  goods  cannot  be  said  to  have  been 
intrusted  to  him  for  sale  in  any  manner,  within  any  fair  meaning  of 
those  words.  It  would  be  a  contradiction  in  terms  to  say  that  goods 
are  intrusted  for  sale  to  one  who  steals  them.  Rodliff  v.  Dallinger, 
141  Mass.  1,  4  N.  E.  805,  55  Am.  Rep.  439;  Thacher  v.  Moors,  134 
Mass.  156;  Stollenwerck  v.  Thacher,  115  Mass.  224;  Dows  v.  Bank, 
91  U.  S.  618,  23  L.  Ed.  214;  Soltau  v.  Gerdau,  119  N.  Y.  380,  23 
N.  E.  864,  16  Am.  St.  Rep.  843. 

If  the  goods  have  been  properly  intrusted  to  an  agent  for  sale,  a 
party  afterwards  dealing  in  good  faith  with  the  agent  will  be  pro- 
tected, though  the  latter  may  violate  his  instructions,  or,  in  dispos- 
ing of  or  dealing  with  the  goods,  conduct  himself  fraudulently  towards 
his  principal.  Bank  v.  Gardner,  15  Gray,  362,  374.  But  that  was 
not  the  case  here. 

In  regard  to  the  case  of  Baines  v.  Swainson,  4  Best  &  S.  270,  which 
may  seem  opposed  to  the  conclusion  which  we  have  reached,  it  should 
be  observed  that  the  English  factors'  acts  (6  Geo.  IV,  c.  94)  simply 
provide  that  the  goods  shall  be  "intrusted,"  and  not  as  ours  "in- 
trusted for  sale,"  and  the  fact  that  they  do  not  provide  that  they  shall 
be  intrusted  for  sale  is  adverted  to  in  the  argument  of  counsel  and 
in  the  opinion  given  by  Crompton,  J.  Id.  275,  281.  See,  also.  Cole 
V.  Bank,  L.  R.  10  C.  P.  354,  Z7Z,  374,  where  Blackburn,  J.,  says  that 
Willes,  J.,  in  delivering  judgment  in  Fuentes  v.  Montis,  L.  R.  3  C. 
P.  268,  "speaks  of  Baines  v.  Swainson  as  going  to  the  extreme  of  the 
law." 

Judgment  on  the  verdicts.^* 

5*  For  a  summary  of  the  effect  of  Factors'  Acts,  in  Encjland  and  the  United 
States,  see  Williston,  Sales,  §§  318-323.  See,  also,  Wisp  v.  Hazard,  66  Cal. 
459,  6  Pac.  91  (1SS5). 


224  RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  (Ch.  2 


SECTION   10.— EFFECT  OF  RETENTION  OF  PROPERTY 
BY  SELLER  AFTER  DELIVERY  TO  BUYER— "CON- 
DITIONAL SALE."  ^' 


HARKNESS  v.  RUSSELL. 

(Supreme  Court  of  United  States.  1886.     118  U.  S.  663,  7  Sup.  Ct.  51,  30 

L.  Ed.  285.) 

This  is  an  appeal  from  the  supreme  court  of  Utah,  The  action 
was  brought  in  the  district  court  for  Weber  county,  to  recover  the 
value  of  two  steam-engines  and  boilers,  and  a  portable  saw-mill  con- 
nected with  each  engine.  A  jury  being  waived,  the  court  found  the 
facts,  and  rendered  judgment  for  the  plaintiff,  Russell  &  Co.  The 
plaintiff  is  an  Ohio  corporation,  and  by  its  agent  in  Idaho,  on  the 
second  of  October,  1882,  agreed  with  a  partnership  firm  by  the  name 
of  Phelan  &  Ferguson,  residents  of  Idaho,  to  sell  to  them  the  said 
engines,  boilers,  and  saw-mills  for  the  price  of  $4,988,  nearly  all  of 
which  was  secured  by  certain  promissory  notes,  which  severally  con- 
tained the  terms  of  the  agreement  between  the  parties.  One  of  the 
notes  (the  others  being  in  the  same  form)  was  as  follows,  to-wit: 

"Salt  Lake  City,  October  2,  1882. 
"On  or  before  the  first  day  of  May,   1883,   for  value  received  in 
one  sixteen-horse  portable-  engine,  No.   1,026,  and  one  portable  saw- 
mill, No.  128,  all  complete,  bought  of  L.  B.  Alattison,  agent  of  Rus- 
rw  sell  &  Co.,  we,  or  either  of  us,  promise  to  pay  to  the  order  of  Russell 

"   ;       &    Co.,    Massillon,    Ohio,    $300,   payable    at    Wells,    Fargo    &    Co.'s 
A       bank,   Salt  Lake   City,  Utah   Territory,   with   ten   per   cent,    interest 
r:-^      per  annum  from  October  1,  1882,  until  paid,  and  reasonable  attorney's 
*•         fees,  or  any  costs  that  may  be  paid  or  incurred  in  any  action  or  pro- 
-^     ceeding  instituted  for  the  collection  of  this  note  or  enforcement  of 
V'     this  covenant.     The  express  condition  of  this  transaction  is  such  that 
^-    the  title,  ownership,  or  possession  of  said  engine  and  saw-mill  does 
•^       not  pass  from  the  said  Russell  &  Co.  until  this  note  and  interest  shall 
fs,    have  been  paid  in  full,  and  the  said  Russell  &  Co.  or  his  agent  has 
full  power  to  declare  this  note  due,  and  take  possession  of  said  engine 
and  saw-mill  when  they  may  deem  themselves  insecure,  even  before 
the  maturity  of  this  note ;  and  it  is  further  agreed  by  the  makers  here- 
of that  if  said  note  is  not  paid  at  maturity,  that  the  interest  shall  be 
two  per  cent,  per  month  from  maturity  hereof  till  paid,  both  before 
and  after  judgment,  if  any  should  be  rendered.     In  case  said  saw-mill 
and  engine  shall  be  taken  back,  Russell  &  Co.  may  sell  the  same  at 

5  5  For  a  list  of  the  states  in  which  recording  acts  have  been  enacted,  with 
*■         citation  of  statutes  and  cases,  see  Williston,  Sales,  §  327. 


-J* 


Sec.  10)         RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  225 

public  or  private  sale  without  notice,  or  they  may,  without  sale,  in- 
dorse the  true  value  of  the  property  on  this  note,  and  we  agree  to 
pay  on  the  note  any  balance  due  thereon,  after  such  indorsement,  as 
damages  and  rental  for  said  machinery.  As  to  this  debt  we  waive  the 
right  to  exempt,  or  claim  as  exempt,  any  property,  real  or  personal, 
we  now  own,  or  may  hereafter  acquire,  by  virtue  of  any  homestead 
or  exemption  law,  state  or  federal,  now  in  force,  or  that  hereafter 
may  be  enacted. 

"P.  O.,  Oxford,  Oneida  County,  Idaho  Territory. 
"$300.  Phelan  &  Ferguson." 

Some  of  the  notes  were  given  for  the  price  of  one  of  the  engines 
with  its  accompanying  boiler  and  mill,  and  the  others  for  the  price  of 
the  other.  Some  of  the  notes  were  paid ;  and  the  present  suit  was 
brought  on  those  that  were  not  paid.  The  property  was  delivered  to 
Phelan  &  Ferguson  on  the  execution  of  the  notes,  and  subsequently 
they  sold  it  to  the  defendant  Harkness,  in  part  payment  of  a  debt  due 
from  them  to  him  and  one  Langsdorf.  The  defendant,  at  the  time 
of  the  sale  to  him,  knew  that  the  purchase  price  of  the  property  had 
not  been  paid  to  the  plaintiff,  and  that  the  plaintiff  claimed  title  there- 
to until  such  payment  was  made.  The  unpaid  notes  given  for  each 
engine  and  mill  exceeded  in  amount  the  value  of  such  engine  and 
mill  when  the  action  was  commenced. 

The  territory  of  Idaho  has  a  law  relating  to  chattel  mortgages  [Act 
of  January  12,  1875],  requiring  that  every  such  mortgage  shall  set 
out  certain  particulars  as  to  parties,  time,  amount,  etc.,  with  an  affi- 
davit attached  that  it  is  bona  fide,  and  made  without  any  design  to 
defraud  and  delay  creditors ;  and  requiring  the  mortgage  and  affidavit 
to  be  recorded  in  the  county  where  the  mortgagor  lives,  and  in  that 
where  the  property  is  located ;  and  it  is  declared  that  no  chattel  mort- 
gage shall  be  valid  (except  as  between  the  parties  thereto)  without 
compliance  with  these  requisites,  unless  the  mortgagee  shall  have  ac- 
tual possession  of  the  property  mortgaged.  In  the  present  case  no 
affidavit  was  attached  to  the  notes,  nor  were  they  recorded. 

The  court  found  that  it  was  the  intention  of  Phelan  &  Ferguson 
and  of  Russell  &  Co.  that  the  title  to  the  said  property  should  not 
pass  from  Russell  &  Co.  until  all  the  notes  were  paid. 

Upon  these  facts  the  court  found,  as  conclusions  of  law,  that  the 
transaction  between  Phelan  &  Ferguson  and  Russell  &  Co.  was  a 
conditional  or  executory  sale,  and  not  an  absolute  sale  with  a  lien  re- 
served, and  that  the  title  did  not  pass  to  Phelan  &  Ferguson,  or  from 
them  to  the  defendant,  and  gave  judgment  for  the  plaintiff.  The  su- 
preme court  of  the  territory  affirmed  this  judgment.  This  appeal 
was  taken  from  that  judgment. 

Mr.  Justice  Bradle;y,  after  stating  the  facts  as  above  reported,  de- 
livered the  opinion  of  the  court. 
WooDW.  Sales — 15 


226  RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  (Ch.  2 

The  first  question  to  be  considered  is  whether  the  transaction  in 
question  was  a  conditional  sale  or  a  mortgage ;  that  is,  whether  it  was 
a  mere  agreement  to  sell  upon  a  condition  to  be  performed,  or  an  ab- 
solute sale,  with  a  reservation  of  a  lien  or  mortgage  to  secure  the  pur- 
chase money.  If  it  was  the  latter,  it  is  conceded  that  the  lien  or  mort- 
gage was  void  as  against  third  persons,  because  not  verified  by  affi- 
davit, and  not  recorded  as  required  by  the  law  of  Idaho.  But,  so  far 
as  words  and  the  express  intent  of  the  parties  can  go,  it  is  perfectly 
evident  that  it  was  not  an  absolute  sale,  but  only  an  agreement  to 
sell  upon  condition  that  the  purchasers  should  pay  their  notes  at  ma- 
turity. The  language  is:  "The  express  condition  of  this  transaction 
is  such  that  the  title  *  *  *  does  not  pass  *  *  *  until  this 
note  and  interest  shall  have  been  paid  in  full."  If  the  vendees  should 
fail  in  this,  or  if  the  vendors  should  deem  themselves  insecure  before 
the  maturity  of  the  notes,  the  latter  were  authorized  to  repossess 
themselves  of  the  machinery,  and  credit  the  then  value  of  it,  or  the 
proceeds  of  it  if  they  should  sell  it,  upon  the  unpaid  notes.  If  this 
did  not  pay  the  notes,  the  balance  was  still  to  be  paid  by  the  makers 
by  way  of  "damages  and  rental  for  said  machinery."  This  stipulation 
was  strictly  in  accordance  with  the  rule  of  damages  in  such  cases. 
Upon  an  agreement  to  sell,  if  the  purchaser  fails  to  execute  his  con- 
tract, the  true  measure  of  damages  for  its  breach  is  the  difference  be- 
tween the  price  of  the  goods  agreed  on  and  their  value  at  the  time  of 
the  breach  or  trial,  which  may  fairly  be  stipulated  to  be  the  price 
they  bring  on  a  resale.  It  cannot  be  said,  therefore,  that  the  stipula- 
tions of  the  contract  were  inconsistent  with  or  repugnant  to  what  the 
parties  declared  their  intention  to  be,  namely,  to  make  an  executory 
and  conditional  contract  of  sale. 

Such  contracts  are  well  known  in  the  law  and  often  recognized ; 
and,  when  free  from  any  fraudulent  intent,  are  not  repugnant  to  any 
principle  of  justice  or  equity,  even  though  possession  of  the  property 
be  given  to  the  proposed  purchaser.  The  rule  is  formulated  in  the 
text-books  and  in  many  adjudged  cases.  In  Lord  Blackburn's  Trea- 
tise on  the  Contract  of  Sale,  published  40  years  ago,  two  rules  are 
laid  down  as  established:  (1)  That  where,  by  the  agreement,  the 
vendor  is  to  do  anything  to  the  goods  before  delivery,  it  is  a  condition 
precedent  to  the  vesting  of  the  property ;  (2)  that  where  anything  re- 
mains to  be  done  to  the  goods  for  ascertaining  the  price,  such  as 
weighing,  testing,  etc.,  this  is  a  condition  precedent  to  the  transfer 
of  the  property.  Blackb.  Sales,  152.  And  it  is  subsequently  added 
that  "the  parties  may  indicate  an  intention,  by  their  agreement,  to 
make  any  condition  precedent  to  the  vesting  of  the  property;  and, 
if  they  do  so,  their  intention  is  fulfilled."  Blackb.  Sales,  167.  Mr, 
Benjamin,  in  his  Treatise  on  Sales  of  Personal  Property,  adds  to 
the  two  formulated  rules  of  Lord  Blackburn  a  third  rule,  which  is 
supported   by    many    authorities,    to-wit :     (3)  "Where    the    buyer   is 


Sec.  10)    RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY    227 

by  the  contract  bound  to  do  anything  as  a  condition,  either  precedent 
or  concurrent,  on  which  the  passing  of  the  property  depends,  the 
property  will  not  pass  until  the  condition  be  fulfilled,  even  though 
the  goods  may  have  been  actually  delivered  into  the  possession  of 
the  buyer."     Benj.  Sales,  (2d  Ed.)  236;  Id.  (3d  Ed.)  §  320. 

The  author  cites  for  this  proposition  Bishop  v.  Stillito,  2  Barn.  & 
Aid.  329,  note  a;  Brandt  v.  Bowlby,  2  Barn.  &  Adol.  932;  Barrow  v. 
Coles,  (Lord  Ellenborough,)  3  Camp.  92;  Swain  v.  Shepherd,  (Baron 
Parke,)  1  Moody  &  R.  223 ;  Mires  v.  Solebay,  2  Mod.  243.  In  the 
last  case,  decided  in  the  time  of  Charles  II,  one  Alston  took  sheep 
to  pasture  for  a  certain  time,  with  an  agreement  that  if,  at  the  end 
of  that  time,  he  should  pay  the  owner  a  certain  sum,  he  should  have 
the  sheep.  Before  the  time  expired  the  owner  sold  them  to  another 
person ;  and  it  was  held  that  the  sale  was  valid,  and  that  the  agree- 
ment to  sell  the  sheep  to  Alston,  if  he  would  pay  for  them  at  a  certain 
day,  did  not  amount  to  a  sale,  but  only  to  an  agreement.  The  other 
cases  were  instances  of  sales  of  goods  to  be  paid  for  in  cash  or  secu- 
rities on  delivery.  It  was  held  that  the  sales  were  conditional  only, 
and  that  the  vendors  were  entitled  to  retake  the  goods,  even  after  de- 
livery, if  the  condition  was  not  performed ;  the  delivery  being  consid- 
ered as  conditional.  This  often  happens  in  cases  of  sales  by  auction, 
when  certain  terms  of  payment  are  prescribed,  with  a  condition  that, 
if  they  are  not  complied  with,  the  goods  may  be  resold  for  account 
of  the  buyer,  who  is  to  account  for  any  deficiency  between  the  second 
sale  and  the  first.  Such  was  the  case  of  Lamond  v.  Duvall,  9  O.  B. 
1030;  and  many  more  cases  could  be  cited.  In  Ex  parte  Crawcour, 
h.  R.  9  Ch.  Div.  419,  certain  furniture  dealers  let  Robertson  have  a 
lot  of  furniture  upon  his  paying  ilO,  in  cash  and  signing  an  agreement 
to  pay  £5  per  month  (for  which  notes  were  given)  until  the  whole 
price  of  the  furniture  should  be  paid ;  and  when  all  the  installments 
were  paid,  and  not  before,  the  furniture  was  to  be  the  property  of 
Robertson;  but,  if  he  failed  to  pay  any  of  the  installments,  the  own- 
ers were  authorized  to  take  possession  of  the  property,  and  all  prior 
payments  actually  made  were  to  be  forfeited.  The  court  of  appeals 
held  that  the  property  did  not  pass  by  this  agreement,  and  could  not 
be  taken  as  Robertson's  property  by  his  trustee  under  a  liquidation 
proceeding.  The  same  conclusion  was  reached  in  the  subsequent 
case  of  Crawcour  v.  Salter,  L.  R.  18  Ch.  Div.  30. 

In  these  cases,  it  is  true,  support  of  the  transaction  was  sought 
from  a  custom  which  prevails  in  the  places  where  the  transactions 
took  place,  of  hotel-keepers  holding  their  furniture  on  hire.  But  they 
show  that  the  intent  of  the  parties  will  be  recognized  and  sanctioned 
where  it  is  not  contrary  to  the  policy  of  the  law.  This  policy,  in 
England,  is  declared  by  statute.  It  has  long  been  a  provision  of  the 
English  bankrupt  laws,  beginning  with  21  James  I,  c.  19,  that  if  any 
person  becoming  bankrupt  has  in  his  possession,  order,  or  disposition, 


228     RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY     (Ch.  2 

by  consent  of  the  owner,  any  goods  or  chattels  of  which  he  is  the  re- 
puted owner,  or  takes  upon  himself  the  sale,  alteration,  or  disposition 
thereof  as  owner,  such  goods  are  to  be  sold  for  the  benefit  of  his 
creditors.  This  law  has  had  the  effect  of  preventing;  or  defeating  con- 
ditional sales  accompanied  by  voluntary  delivery  of  possession,  except 
in  cases  like  those  before  referred  to;  so  that  very  few  decisions  are 
to  be  found  in  the  English  books  directly  in  point  on  the  question  un- 
der consideration.  The  following  case  presents  a  fair  illustration  of 
the  English  law  as  based  upon  the  statutes  of  bankruptcy.  In  Horn 
V.  Baker,  9  East,  215,  the  owner  of  a  term  in  a  distillery,  and  of  the 
apparatus  and  utensils  employed  therein,  demised  the  same  to  J.  & 
S.  in  consideration  of  an  annuity  to  be  paid  to  the  owner  and  his 
wife  during  their  several  lives,  and  upon  their  death  the  lessees  to 
have  the  liberty  of  purchasing  the  residue  of  the  term,  and  the  ap- 
paratus and  utensils,  with  a  proviso  for  re-entry  if  the  annuity  should 
at  any  time  be  two  months  in  arrear.  The  annuity  having  become  in 
arrear  for  that  period,  instead  of  making  entry  for  condition  broken, 
the  wife  and  administrator  of  the  owner  brought  suit  to  recover  the 
arrears,  which  was  stopped  by  the  bankruptcy  of  J.  &  S.  The  ques- 
tion then  arose  whether  the  utensils  passed  to  the  assignees  of  J.  & 
S.  under  the  bankrupt  act,  as  being  in  their  possession,  order,  and 
disposition  as  reputed  owners ;  and  the  court  held  that  they  did ;  but 
that,  if  there  had  been  a  usage  in  the  trade  of  letting  utensils  with  a 
distillery,  the  case  would  have  admitted  a  different  consideration, 
since  such  a  custom  might  have  rebutted  the  presumption  of  owner- 
ship arising  from  the  possession  and  apparent  order  and  disposition  of 
the  goods.  This  case  was  followed  in  Holrovd  v.  Gwynne,  2  Taunt. 
176. 

This  presumption  of  property  in  a  bankrupt  arising  from  his  pos- 
session and  reputed  ownership  became  so  deeply  imbedded  in  the 
English  law  that  in  process  of  time  many  persons  in  the  profession, 
not  adverting  to  its  origin  in  the  statute  of  bankruptcy,  were  led  to 
regard  it  as  a  doctrine  of  the  common  law ;  and  hence  in  some  states 
in  this  country,  where  no  such  statute  exists,  the  principles  of  the 
statute  have  been  followed,  and  conditional  sales  of  the  kind  now  un- 
der consideration  have  been  condemned  either  as  being  fraudulent 
and  void  as  against  creditors,  or  as  amounting,  in  effect,  to  absolute 
sales  with  a  reserved  lien  or  mortgage  to  secure  the  payment  of  the 
purchase  money.  This  view  is  based  on  the  notion  that  such  sales  are 
not  allowed  by  law,  and  that  the  intent  of  the  parties,  however  hon- 
estly formed,  cannot  legally  be  carried  out.  The  insufficiency  of 
this  argument  is  demonstrated  by  the  fact  that  conditional  sales  are 
admissible  in  several  acknowledged  cases,  and  therefore  there  cannot 
be  any  rule  of  law  against  them  as  such.  They  may  sometimes  be 
used  as  a  cover  for  fraud;  and,  when  this  is  charged,  all  the  circum- 
stances of  the  case,  this  included,  will  be  open  for  the  consideration  of 


Sec.  10)         RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  229 


^ 


a  jury.  ,  Where  no  fraud  is  intended,  but  the  honest  purpose  of  the 
parties  is  that  the  vendee  shall  not  have  the  ownership  of  the  goods 
until  he  has  paid  for  them,  there  is  no  general  principle  of  law  to  pre- 
vent their  purpose  from  having  effect. 

In  this  country,  in  states  where  no  such  statute  as  the  English  act 
referred  to  is  in  force,  many  decisions  have  been  rendered  sustaining 
conditional  sales  accompanied  by  delivery  of  possession,  both  as  be 
tween  the  parties  themselves  and  as  to  third  persons. 

In  Hussey  v.  Thornton,  4  Mass.  405,  3  Am.  Dec.  224,  (decided  in 
1808,)  where  goods  were  delivered  on  board  of  a  vessel  for  the  vendee 
upon  an  agreement  for  a  sale,  subject  to  the  condition  that  the  goods 
should  remain  the  property  of  the  vendors  until  they  received  secu- 
rity for  payment,  it  was  held  (Chief  Justice  Parsons  delivering  the 
opinion)  that  the  property  did  not  pass,  and  that  the  goods  could  not 
be  attached  by  the  creditors  of  the  vendee.  This  case  was  followed 
in  1822  by  that  of  Marston  v.  Baldwin,  17  Mass.  606,  which  was 
replevin  against  a  sheriff  for  taking  goods  which  the  plaintiff  had 
agreed  to  sell  to  one  Holt,  the  defendant  in  the  attachment ;  but  by 
the  agreement  the  property  was  not  to  vest  in  Holt  until  he  should 
pay  $100,  (part  of  the  price,)  which  condition  was  not  performed, 
though  the  goods  were  delivered.  Holt  had  paid  $75,  which  the 
plaintiff  did  not  tender  back.  The  court  held  that  it  was  sufficient 
for  the  plaintiff  to  be  ready  to  repay  the  money  when  he  should  be 
requested,  and  a  verdict  for  the  plaintiff  was  sustained. 

In  Barrett  v.  Pritchard,  2  Pick.  (Mass.)  512,  515-516  (13  Am.  Dec. 
449),  the  court  said :  "It  is  impossible  to  raise  a  doubt  as  to  the  in- 
tention of  the  parties  in  this  case,  for  it  is  expressly  stipulated  that 
'the  wool,  before  manufactured,  after  being  manufactured,  or  in  any 
stage  of  manufacture,  shall  be  the  property  of  the  plaintiff  until  the 
price  be  paid.'  It  is  difficult  to  imagine  any  good  reason  why  this 
agreement  should  not  bind  the  parties.  *  *  *  'p}-,g  ^^^^  fj-Qm 
Taunton  (Holroyd  v.  Gwynn)  was  a  case  of  a  conditional  sale;  but 
the  condition  was  void  as  against  the  policy  of  the  statute  21  Jac.  I, 
c.  19,  §  11.  It  would  not  have  changed  the  decision  in  that  case  if 
there  had  been  no  sale;  for,  by  that  statute,  if  the  true  owner  of 
goods  and  chattels  suffers  another  to  exercise  such  control  and  man- 
agement over  them  as  to  give  him  the  appearance  of  being  the  real 
owner,  and  he  becomes  bankrupt,  the  goods  and  chattels  shall  be 
treated  as  his  property,  and  shall  be  assigned  by  the  commissioners 
for  the  benefit  of  his  creditors.  The  case  of  Horn  v.  Baker,  9  East, 
215,  also  turned  on  the  same  point,  and  nothing  in  either  of  these 
cases  has  any  bearing  on  the  present  question." 

In  Coggill  V.  Hartford  &  N.  H.  R.  Co.,  3  Gray  (Mass.)  545-547, 
the  rights  of  a  bona  fide  purchaser  from  one  in  possession  under  a 
conditional  sale  of  goods  were  specifically  discussed,  and  the  court 
held,  in  an  able  opinion  delivered  by  Mr.  Justice  Bigelow,  that  a  sak 


230  RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  (Ch.  2 

and  delivery  of  goods  on  condition  that  the  title  shall  not  vest  in  the 
vendee  until  payment  of  the  price  passes  no  title  until  the  condition  is 
performed,  and  the  vendor,  if  guilty  of  no  laches,  may  reclaim  the 
property,  even  from  one  who  has  purchased  from  his  vendee  in  good 
faith,  and  without  notice.  The  learned  justice  commenced  his  opin- 
ion in  the  following  terms :  "It  has  long  been  the  settled  rule  of  law 
in  this  commonwealth  that  a  sale  and  delivery  of  goods  on  condition 
that  the  property  is  not  to  vest  until  the  purchase  money  is  paid  or 
secured,  does  not  pass  the  title  to  the  vendee,  and  that  the  vendor,  in 
case  the  condition  is  not  fulfilled,  has  a  right  to  repossess  himself  of 
the  goods,  both  against  the  vendee  and  against  his  creditors  claiming 
to  hold  them  under  attachments."  He  then  addresses  himself  to  a 
consideration  of  the  rights  of  a  bona  fide  purchaser  from  the  ven- 
dee, purchasing  without  notice  of  the  condition  on  which  the  latter 
holds  the  goods  in  his  possession;  and  he  concludes  that  they  are  no 
greater  than  those  of  a  creditor.  He  says :  "All  the  cases  turn  on 
the  principle  that  the  compliance  with  the  conditions  of  sale  and  de- 
livery is,  by  the  terms  of  the  contract,  precedent  to  the  transfer  of 
the  property  from  the  vendor  to  the  vendee.  The  vendee  in  such  cas- 
es acquires  no  property  in  the  goods.  He  is  only  a  bailee  for  a  spe- 
cific purpose.  The  delivery  which  in  ordinary  cases  passes  the  title 
to  the  vendee  must  take  effect  according  to  the  agreement  of  the  par- 
ties, and  can  operate  to  vest  the  property  only  when  the  contingency 
contemplated  by  the  contract  arises.  The  vendee,  therefore,  in  such 
cases,  having  no  title  to  the  property,  can  pass  none  to  others.  He 
has  only  a  bare  right  of  possession,  and  those  who  claim  under  him, 
either  as  creditors  or  purchasers,  can  acquire  no  higher  or  better  title. 
Such  is  the  necessary  result  of  carrying  into  effect  the  intention  of 
the  parties  to  a  conditional  sale  and  delivery.  Any  other  rule  would 
be  equivalent  to  the  denial  of  the  validity  of  such  contracts.  But 
they  certainly  violate  no  rule  of  law,  nor  are  they  contrary  to  sound 
policy."  This  case  was  followed  in  Sargent  v.  Metcalf,  5  Gray 
(Mass.)  306,  66  Am.  Dec.  368;  Deshon  v.  Bigelow,  8  Gray  (Mass.) 
159;  Whitney  v.  Eaton,  15  Gray  (Mass.)  225;  Hirschorn  v.  Canney, 
98  Mass.  149;  and  Chase  v.  Ingalls,  122  Mass.  381 ;  and  is  believed  to 
express  the  settled  law  of  Massachusetts. 

The  same  doctrine  prevails  in  Connecticut,  and  was  sustained  in 
an  able  and  learned  opinion  of  Chief  Justice  Williams,  in  the  case 
of  Forbes  v.  Marsh,  15  Conn.  384,  (decided  in  1843,)  in  which  the 
principal  authorities  are  reviewed.  The  decision  in  this  case  war- 
followed  in  the  subsequent  case  of  Hart  v.  Carpenter,  24  Conn.  427. 
where  the  question  arose  upon  the  claim  of  a  bona  fide  purchaser. 

In  New  York  the  law  is  the  same,  at  least  so  far  as  relates  to  the 
vendee  in  a  conditional  sale  and  to  his  creditors ;  though  there  has 
been  some  diversity  of  opinion  in  its  application  to  bona  fide  purchas- 
ers from  such  vendee.     As  early  as  1822,  in  the  case  of  Haggerty  v. 


Sec.  10)         RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  231 

Palmer,  6  Johns.  Ch.  (N.  Y.)  437,  where  an  auctioneer  had  delivered 
to  the  purchaser  goods  sold  at  auction,  it  being  one  of  the  conditions 
of  sale  that  indorsed  notes  should  be  given  in  payment,  which  the 
purchaser  failed  to  give,  Chancellor  Kent  held  that  it  was  a  condi- 
tional sale  and  delivery,  and  gave  no  title  which  the  vendee  could 
transfer  to  an  assignee  for  the  benefit  of  creditors;  and  he  said  that 
the  cases  under  the  English  bankrupt  act  did  not  apply  here.  The 
chancellor  remarked,  however,  that  "if  the  goods  had  been  fairly 
sold  by  P.,  [the  conditional  vendee,]  or  if  the  proceeds  had  been  ac- 
tually appropriated  by  the  assignees  before  notice  of  this  suit  and  of 
the  injunction,  the  remedy  would  have  been  gone." 

In  Strong  v.  Taylor,  2  Hill  (N.  Y.)  326,  Nelson,  C.  J.,  pronouncing 
the  opinion,  it  was  held  to  be  a  conditional  sale  where  the  agreement 
was  to  sell  a  canalboat  for  a  certain  sum,  to  be  paid  in  freighting 
flour  and  wheat,  as  directed  by  the  vendor,  he  to  have  half  the  freight 
until  paid  in  full,  with  interest.  Before  the  money  was  all  paid  the 
boat  was  seized  under  an  execution  against  the  vendee;  and,  in  a 
suit  by  the  vendor  against  the  sheriff,  a  verdict  was  found  for  the 
plaintiff,  under  the  instruction  of  the  court,  and  was  sustained  in  banc 
upon  the  authority  of  the  Massachusetts  case  of  Barrett  v.  Pritchard, 
2  Pick.  (Mass.)  512,  13  Am.  Dec.  449. 

In  Herring  v.  Hoppock,  15  N,  Y.  409,  411,  414,  the  same  doctrine 
was  followed.  In  that  case  there  was  an  agreement  in  writing  for  the 
sale  of  an  iron  safe,  which  was  delivered  to  the  vendee,  and  a  note  at 
six  months  given  therefor ;  but  it  was  expressly  understood  that  no 
title  was  to  pass  until  the  note  was  paid;  and  if  not  paid.  Herring, 
the  vendor,  was  authorized  to  retake  the  safe,  and  collect  all  rea- 
sonable charges  for  its  use.  The  sheriff  levied  on  the  safe  as  the 
property  of  the  vendee,  with  notice  of  the  plaintiff's  claim.  The 
court  of  appeals  held  that  the  title  did  not  pass  out  of  Herring. 
Paige,  J.,  said :  "Whenever  there  is  a  condition  precedent  attached 
to  a  contract  of  sale  which  is  not  waived  by  an  absolute  and  uncondi- 
tional delivery,  no  title  passes  to  the  vendee  until  he  performs  the 
condition  or  the  seller  waives  it."  Comstock,  J.,  said  that,  if  the 
question  were  new,  it  might  be  more  in  accordance  with  the  analogies 
of  the  law  to  regard  the  writing  given  on  the  sale  as  a  mere  security 
for  the  debt  in  the  nature  of  a  personal  mortgage ;  but  he  considered 
the  law  as  having  been  settled  by  the  previous  cases,  and  the  court 
unanimously  concurred  in  the  decision. 

In  the  cases  of  Smith  v.  Lynes,  5  N.  Y.  41,  and  Wait  v.  Green, 
35  Barb.  (N.  Y.)  585,  on  appeal  36  N.  Y.  556,  it  was  held  that  a  bona 
fide  purchaser,  without  notice  from  a  vendee  who  is  in  possession  un- 
der a  conditional  sale,  will  be  protected  as  against  the  original  ven- 
dor. These  cases  were  reviewed,  and,  we  think,  substantially  over- 
ruled, in  the  subsequent  case  of  Ballard  v.  Burgett,  40  N.  Y.  314, 
in  which  separate  elaborate  opinions  were  delivered  by  Judges  Grover 


232  RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  (Ch.  2 

and  Lett.  This  decision  was  concurred  in  by  Chief  Judge  Hunt,  and 
Judges  ^^'oodruff,  Mason,  and  Daniels ;  Judges  James  and  Murray 
dissenting.  In  that  case  Ballard  agreed  to  sell  to  one  France  a 
yoke  of  oxen  for  a  price  agreed  on,  but  the  contract  had  the  condition 
"that  the  oxen  were  to  remain  the  property  of  Ballard  until  they 
should  be  paid  for."  The  oxen  were  delivered  to  France,  and  he 
subsequently  sold  them  to  the  defendant  Burgett,  who  purchased  and 
received  them  without  notice  that  the  plaintiff  had  any  claim  to  them. 
The  court  sustained  Ballard's  claim ;  and  subsequent  cases  in  New 
York  are  in  harmonv  with  this  decision.  See  Cole  v.  Mann,  62  N. 
Y.  1;  Bean  v.  Edge,' 84  N.  Y.  510. 

We  do  not  perceive  that  the  case  of  Dows  v.  Kidder,  84  N.  Y.  121, 
is  adverse  to  the  ruling-  in  Ballard  v.  Burgett.  There,  although  the 
plaintiffs  stipulated  that  the  title  to  the  corn  should  not  pass  until 
payment  of  the  price,  (which  was  to  be  cash,  the  same  day,)  yet  they 
indorsed  and  delivered  to  the  purchaser  the  evidence  of  title,  namely, 
the  weigher's  return,  to  enable  him  to  take  out  the  bill  of  lading  in 
his  own  name,  and  use  it  in  raising  funds  to  pay  the  plaintiff.  The 
purchaser  misappropriated  the  funds,  and  did  not  pay  for  the  corn. 
Here  the  intent  of  both  parties  was  that  the  purchaser  might  dispose 
of  the  corn,  and  he  was  merely  the  trustee  of  the  plaintiff,  invested 
by  him  with  the  legal  title.  Of  course,  the  innocent  party  who  pur- 
chased the  corn  from  the  first  purchaser  was  not  bound  -by  the  eq- 
uities between  him  and  the  plaintiff. 

The  later  case  of  Parker  v.  Baxter,  86  N.  Y.  586,  was  precisely 
similar  to  Dows  v.  Kidder;  and  the  same  principle  was  involved  in 
Farwell  v.  Importers'  &  Traders'  Bank,  90  N.  Y.  483,  where  the 
plaintiff  delivered  his  own  note  to  a  broker  to  get  it  discounted,  and 
the  latter  pledged  it  as  collateral  for  a  loan  made  to  himself.  The 
legal  title  passed ;  and  although,  as  between  the  plaintiff  and  the  bro- 
ker, the  former  was  the  owner  of  the  note  and  its  proceeds,  yet  that 
was  an  equity  which  was  not  binding  on  the  innocent  holder. 

The  decisions  in  Maine,  New  Hampshire,  and  Vermont  are  under- 
stood to  be  substantially  to  the  same  effect  as  those  of  Massachusetts 
and  New  York ;  though  by  recent  statutes  in  Maine  and  Vermont,  as 
also  in  Iowa,  where  the  same  ruling  prevailed,  it  is  declared  in  effect 
that  no  agreements  that  personal  property,  bargained  and  delivered  to 
another,  shall  remain  the  property  of  the  vendor,  shall  be  valid  against 
third  persons  without  notice.  George  v.  Stubbs,  26  Me.  243 ;  Sawyer 
V.  Fisher,  32  Me.  28;  Brown  v.  Haynes,  52  Me.  578;  Boynton  v. 
Libby,  62  Me.  253;  Rogers  v.  Whitehouse,  71  Me.  222;  Sargent  v. 
Gile,  8  N.  H.  325;  McFarland  v.  Farmer,  42  N.  H.  386;  King  v. 
Bates,  57  N.  H.  446;  Hefflin  v.  Bell,  30  Vt.  134;  Armington  v.  Hous- 
ton, 38  Vt.  448,  91  Am.  Dec.  366;  Fales  v.  Roberts,  38  Vt.  503;  Dun- 
can V.  Stone,  45  Vt.  123 ;  Moseley  v.  Shattuck,  43  Iowa,  540 ;  Thorpe 
V.  Fowler,  57  Iowa.  541,  11  N.  W.  3. 


Sec.  10)         RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  233 

The  same  view  of  the  law  has  been  taken  in  several  other  states. 
In  New  Jersey,  in  the  case  of  Cole  v.  Berry,  42  N.  J.  Law,  308,  36 
Am.  Rep.  511,  it  was  held  that  a  contract  for  the  sale  of  a  sewing- 
machine  to  be  delivered  and  paid  for  by  installments,  and  to  remain 
the  property  of  the  vendor  until  paid  for,  was  a  conditional  sale,  and 
gave  the  vendee  no  title  until  the  condition  was  performed ;  and  the 
cases  are  very  fully  discussed  and  distinguished. 

In  Pennsylvania  the  law  is  understood  to  be  somewhat  different. 
It  is  thus  summarized  by  Judge  Depue,  in  the  opinion  delivered  in 
Cole  V.  Berry,  42  N.  J.  Law,  314,  where  he  says:  "In  Pennsylvania 
a  distinction  is  taken  between  delivery  under  a  bailment,  with  an  op- 
tion in  the  bailee  to  purchase  at  a  named  price,  and  a  delivery  under  a 
contract  of  sale  containing  a  reservation  of  title  in  the  vendor  until 
the  contract  price  be  paid ;  it  being  held  that  in  the  former  instance 
property  does  not  pass  as  in  favor  of  creditors  and  purchasers  of  the 
bailee,  but  that  in  the  latter  instance  delivery  to  the  vendee  subjects 
the  property  to  execution  at  the  suit  of  his  creditors,  and  makes  it 
transferable  to  bona  fide  purchasers.  Chamberlain  v.  Smith,  44  Pa. 
431;  Rose  v.  Story,  1  Pa.  190  [44  Am.  Dec.  121]  ;  Martin  v.  Mathiot, 
14  Serg.  &  R.  (Pa.)  214  [16  Am.  Dec.  491]  ;  Haak  v.  Linderman,  64 
Pa.  499  [3  Am.  Rep.  612]."  But,  as  the  learned  judge  adds:  "This 
distinction  is  discredited  by  the  great  weight  of  authority,  which  puts 
possession  under  a  conditional  contract  of  sale  and  possession  under; 
a  bailment  on  the  same  footing, — liable  to  be  assailed  by  creditors  and; 
purchasers  for  actual  fraud,  but  not  fraudulent  per  se." 

In  this  connection,  see  the  case  of  Copland  v.  Bosquet,  4  Wash.  C. 
C.  588,  Fed.  Cas.  No.  3,212,  where  Mr.  Justice  Washington  and  Judge 
Peters  (the  former  delivering  the  opinion  of  the  court)  sustained  a 
conditional  sale  and  delivery  against  a  purchaser  from  the  vendee, 
who  claimed  to  be  a  bona  fide  purchaser  without  notice. 

In  Ohio  the  validity  of  conditional  sales  accompanied  by  delivery 
of  possession  is  fully  sustained.  The  latest  reported  case  brought  to 
our  attention  is  that  of  Call  v.  Seymour,  40  Ohio  St.  670,  which  arose 
upon  a  written  contract  contained  in  several  promissory  notes  given 
for  installments  of  the  purchase  money  of  a  machine,  and  resembling 
very  much  the  contract  in  the  case  now  under  consideration.  Follow- 
ing the  note,  and  as  a  part  of  the  same  document,  is  this  condition : 
"The  express  conditions  of  the  sale  and  purchase  of  the  separator 
and  horse-power  for  which  this  note  is  given,  is  such  that  the  title, 
ownership,  or  possession  does  not  pass  from  the  said  Seymour,  Sabin 
&  Co.  until  this  note,  with  interest,  is  paid  in  full.  The  said  Seymour, 
Sabin  &  Co.  have  full  power  to  declare  this  note  due,  and  take  pos- 
session of  said  separator  and  horse-power,  at  any  time  they  may  deem 
this  note  insecure,  even  before  the  maturity  of  the  note,  and  to  sell 
the  said  machine  at  public  or  private  sale,  the  proceeds  to  be  applied 
upon  the  unpaid  balance  of  the  purchase  price."     The  machine  was 


234     RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY     (Ch.  2 

seized  under  an  attachment  issued  against  the  vendee,  and  the  action 
was  brought  by  the  vendor  against  the  constable  who  served  the  at- 
tachment. The  case  was  fully  argued,  and  the  authorities  pro  and 
con  duly  considered  by  the  court,  which  sustained  the  condition  ex- 
pressed in  the  contract,  and  affirmed  the  judgment  for  the  plaintiff. 
See,  also,  Sanders  v.  Keber,  28  Ohio  St.  630. 

The  same  law  prevails  in  Indiana.  Shireman  v.  Jackson,  14  Ind. 
459;  Dunbar  v.  Rawles,  28  Ind.  225,  92  Am.  Dec.  311;  Bradshaw  v. 
Warner,  54  Ind.  58;  Hodson  v.  Warner,  60  Ind.  214;  McGirr  v.  Sell, 
60  Ind.  249.  The  same  in  Michigan.  Whitney  v.  McConnell,  29 
Mich.  12 ;  Smith  v.  Lozo,  42  Mich.  6,  3  N.  W.  227 ;  ^larquette  Man- 
uf'g  Co.  V.  Jeffrey,  49  Mich.  283,  13  N.  W.  592.  The  same  in  Mis- 
souri. Ridgeway  v,  Kennedy,  52  ^lo.  24;  Wangler  v.  Franklin,  70 
Mo.  659;  Sumner  v.  Cottey,  71  j\Io.  121.  The  same  in  Alabama. 
Fairbanks  v.  Eureka,  67  Ala.  109;  Sumner  v.  Woods,  67  Ala.  139, 
42  Am.  Rep.  104.  The  same  in  several  other  states.  For  a  very 
elaborate  collection  of  cases  on  the  subject,  see  Mr.  Bennett's  note  to 
Benj.  Sales,  (4th  Ed.)  §  320,  pp.  329-336;  and  Mr.  Freeman's  note 
to  Kanaga  v.  Taylor,  7  Ohio  St.  134,  70  Am.  Dec.  62.  It  is  unneces- 
sary to  quote  further  from  the  decisions.  The  quotations  already 
made  show  the  grounds  and  reasons  of  the  rule. 

The  law  has  been  held  differently  in  Illinois,  and  very  nearly  in 
conformity  with  the  English  decisions  under  the  operation  of  the 
bankrupt  law.  The  doctrine  of  the  supreme  court  of  that  state  is 
that  if  a  person  agrees  to  sell  to  another  a  chattel  on  condition  that 
the  price  shall  be  paid  within  a  certain  time,  retaining  the  title  in  him- 
self in  the  mean  time,  and  delivers  the  chattel  to  the  vendee  so  as  to 
clothe  him  with  the  apparent  ownership,  a  bona  fide  purchaser,  or  an 
execution  creditor  of  the  latter,  is  entitled  to  protection  as  against  the 
claim  of  the  original  vendor.  Brundage  v.  Camp,  21  111.  330;  Mc- 
Cormick  v.  Hadden,  Z7  111.  370;  Murch  v.  Wright,  46  111.  488,  95 
Am.  Dec.  455;  Michigan  Cent.  R.  Co.  v.  PhilHps,  60  111.  190;  Lucas  v. 
Campbell,  88  111.  447 ;  Van  Duzor  v.  Allen,  90  111.  499.  Perhaps  the 
statute  of  Illinois  on  the  subject  of  chattel  mortgages  has  influenced 
some  of  these  decisions.  This  statute  declares  that  "no  mortgage, 
trust  deed,  or  other  conveyance  of  personal  property  having  the  ef- 
fect of  a  mortgage  or  lien  upon  such  property,  is  valid  as  against 
the  rights  and  interests  of  any  third  person,  unless  the  possession 
thereof  be  delivered  to  and  remain  with  the  grantee,  or  the  instrument 
provide  that  the  possession  of  the  property  may  remain  with  the 
grantor,  and  the  instrument  be  acknowledged  and  recorded."  It  has 
been  supposed  that  this  statute  indicates  a  rule  of  public  policy  con- 
demning secret  liens  and  reservations  of  title  on  the  part  of  ven- 
dors, and  making  void  all  agreements  for  such  liens  or  reservations 
unless  registered  in  the  manner  required  for  chattel  mortgages.    At  all 


Sec.  10)    RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY    235 

events,  the  doctrine  above  referred  to  has  become  a  rule  of  property 
in  IlHnois,  and  we  have  felt  bound  to  observe  it  as  such. 

In  the  case  of  Hervey  v.  Rhode  Island  Locomotive  Works,  93  U. 
S.  664,  671,  23  L.  Ed.  1003,  where  a  Rhode  Island  company  leased 
to  certain  Illinois  ra^road  contractors  a  locomotive  engine  and  ten- 
der at  a  certain  rent,  payable  at  stated  times  during  the  ensuing  year, 
with  an  agreement  that,  if  the  rent  was  duly  paid,  the  engine  and  ten- 
der should  become  the  property  of  the  lessees,  and  possession  was 
delivered  to  them,  this  court,  being  satisfied  that  the  transaction  was 
a  conditional  sale,  and  that,  by  the  law  of  Illinois,  the  reservation  of 
title  by  the  lessors  was  void  as  against  third  persons  unless  the  agree- 
ment was  recorded,  (which  it  was  not  in  proper  time,)  decided  that 
a  levy  and  sale  of  the  property  in  Illinois,  under  a  judgment  against 
the  lessees,  were  valid,  and  that  the  locomotive  works  could  not  re- 
claim it.  Mr.  Justice  Davis,  delivering  the  opinion  of  the  court,  said : 
"It  was  decided  by  this  court  in  Green  v.  Van  Buskirk,  5  Wall.  307, 
and  7  Wall.  139,  that  the  liability  of  property  to  be  sold  under  legal 
process  issuing  from  the  courts  of  the  state  where  it  is  situated,  must 
be  determined  by  the  law  there,  rather  than  that  of  the  jurisdiction 
where  the  owner  lives.  These  decisions  rest  on  the  ground  that  every 
state  has  the  right  to  regulate  the  transfer  of  property  within  its 
limits,  and  that  whoever  sends  property  to  it  impliedly  submits  to  the 
regulations  concerning  its  transfer  in  force  there,  although  a  different 
rule  of  transfer  prevails  in  the  jurisdiction  where  he  resides.  *  *  * 
The  policy  of  the  law  in  Illinois  will  not  permit  the  owner  of  person- 
al property  to  sell  it,  either  absolutely  or  conditionally,  and  still  con- 
tinue in  possession  of  it.  Possession  is  one  of  the  strongest  evidences 
of  title  to  this  class  of  property,  and  cannot  be  rightfully  separated 
from  the  title,  except  in  the  manner  pointed  out  by  the  statute.  The 
courts  of  Illinois  say  that  to  suffer,  without  notice  to  the  world,  the 
real  ownership  to  be  in  one  person,  and  the  ostensible  ownership  in 
another,  gives  a  false  credit  to  the  latter,  and  in  this  way  works  an 
injury  to  third  persons.  Accordingly,  the  actual  owner  of  personal 
property  creating  an  interest  in  another  to  whom  it  is  delivered,  if  de- 
sirous of  preserving  a  lien  on  it,  must  comply  with  the  provisions  of 
the  chattel  mortgage  act.  Rev.  St.  111.  1874,  711,  712."  The  Illinois 
cases  are  then  referred  to  by  the  learned  justice  to  show  the  precise 
condition  of  the  law  of  that  state  on  the  subject  under  consideration. 

The  case  of  Hervey  v.  Rhode  Island  Locomotive  Works  is  relied  on 
by  the  appellants  in  the  present  case  as  a  decision  in  their  favor;  but 
this  is  not  a  correct  conclusion,  for  it  is  apparent  that  the  only  points 
decided  in  that  case  were — First,  that  it  was  to  be  governed  by  the 
law  of  Illinois,  the  place  where  the  property  was  situated;  secondly, 
that  by  the  law  of  Illinois  the  agreement  for  continuing  the  title  of  the 
property  in  the  vendors  after  its  delivery  to  the  vendees,  whereby  the 
latter  became  the  ostensible  owners,  was  void  as  against  third  persons. 


236  RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  (Ch.  3 

This  is  all  that  was  decided,  and  it  does  not  aid  the  appellants,  unless 
they  can  show  that  the  law  as  held  in  Illinois,  contrary  to  the  great 
weight  of  authority  in  England  and  this  country,  is  that  which  should 
govern  the  present  case.  And  this  we  think  they  cannot  do.  We 
do  not  mean  to  say  that  the  Illinois  doctrine  is  not  supported  by  some 
decisions  in  other  states.  There  are  such  decisions ;  but  they  are  few 
in  number  compared  with  those  in  which  it  is  held  that  conditional 
sales  are  valid  and  lawful  as  well  against  third  persons  as  against 
the  parties  to  the  contract. 

The  appellants,  however,  rely  with  much  confidence  on  the  deci- 
sion of  this  court  in  Herryford  v.  Davis,  102  U.  S.  235,  243,  26  L,. 
Ed.  160,  a  case  coming  from  Missouri,  where  the  law  allows  and  sus- 
tains conditional  sales.  But  we  do  not  think  that  this  case,  any  more 
than  that  of  Hervey  v.  Rhode  Island  Locomotive  Works,  will  be 
found  to  support  their  views.  The  whole  question  in  Herryford  v. 
Davis  was  as  to  the  construction  of  the  contract.  This  was  in  the 
form  of  a  lease,  but  it  contained  provisions  so  irreconcilable  with  the 
idea  of  its  being  really  a  lease,  and  so  demonstrable  that  it  was  an 
absolute  sale  wuth  a  reservation  of  a  mortgage  lien,  that  the  latter 
interpretation  was  given  to  it  by  the  court.  This  interpretation  ren- 
dered it  obnoxious  to  the  statute  of  Missouri  requiring  mortgages  of 
personal  property  to  be  recorded  in  order  to  be  valid  as  against  third 
persons.  It  was  conceded  by  the  court,  in  the  opinion  delivered  by 
Mr.  Justice  Strong,  that  if  the  agreement  had  really  amounted  to  a 
lease,  with  an  agreement  for  a  conditional  sale,  the  claim  of  the  ven- 
dors would  have  been  valid..  The  first  two  or  three  sentences  of  the 
opinion  furnish  a  key  to  the  whole  effect  of  the  decision.  Mr.  Jus- 
tice Strong  says :  "The  correct  determination  of  this  case  depends 
altogether  upon  the  construction  that  must  be  given  to  the  contract 
between  the  Jackson  &  Sharp  Company  and  the  railroad  company, 
against  which  the  defendants  below  recovered  their  judgment  and 
obtained  their  execution.  If  that  contract  was  a  mere  lease  of  the 
cars  to  the  railroad  company,  or  if  it  was  only  a  conditional  sale, 
which  did  not  pass  the  ownership  until  the  condition  should  be  per- 
formed, the  property  was  not  subject  to  levy  and  sale  under  execution 
at  the  suit  of  the  defendant  against  the  company.  But  if,  on  the  other 
hand,  the  title  passed  by  the  contract,  and  what  was  reserved  by  the 
Jackson  &  Sharp  Company  was  a  lien  or  security  for  the  payment  of 
the  price,  or  what  is  called  sometimes  a  mortgage  back  to  the  ven- 
dors, the  cars  were  subject  to  levy  and  sale  as  the  property  of  the 
railroad  company." 

The  whole  residue  of  the  opinion  is  occupied  with  the  discussion 
of  the  true  construction  of  the  contract;  and,  as  we  have  stated,  the 
conclusion  was  reached  that  it  was  not  really  a  lease  nor  a  conditional 
sale,  but  an  absolute  sale,  with  the  reservation  of  a  lien  or  security  for 
the  payment  of  the  price.     This  ended  the  case ;  for,  thus  interpreted, 


Sec.  10)         RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  237 

the  instrument  inured  as  a  mortgage  in  favor  of  the  vendors,  and 
ought  to  have  been  recorded  in  order  to  protect  them  against  third 
persons. 

But  whatever  the  law  may  be  with  regard  to  a  bona  fide  purchaser 
from  the  vendee  in  a  conditional  sale,  there  is  a  circumstance  in  the 
present  case  which  makes  it  clear  of  all  difficulty.  The  appellant  in 
the  present  case  w^as  not  a  bona  fide  purchaser  without  notice.  The 
court  below  find  that,  at  the  time  of  and  prior  to  the  sale,  he  knew  the 
purchase  price  of  the  property  had  not  been  paid,  and  that  Russell 
&  Co.  claimed  title  thereto  until  such  payment  was  made.  Under  such 
circumstances,  it  is  almost  the  unanimous  opinion  of  all  the  courts  that 
he  cannot  hold  the  property  as  against  the  true  owners ;  but  as  the 
rulings  of  this  court  have  been,  as  we  think,  somewhat  misunder- 
stood, we  have  thought  it  proper  to  examine  the  subject  with  some 
care,  and  to  state  what  we  regard  as  the  general  rule  of  law  where 
it  is  not  affected  by  local  statutes  or  local  decisions  to  the  contrary. 

It  is  only  necessary  to  add  that  there  is  nothing  either  in  the  stat- 
ute or  adjudged  law  of  Idaho  to  prevent,  in  this  case,  the  operation  of 
the  general  rule,  which  we  consider  to  be  established  by  overwhelming 
authority,  namely,  that,  in  the  absence  of  fraud,  an  agreement  for  a 
conditional  sale  is  good  and  valid  as  well  against  third  persons  as 
against  the  parties  to  the  transaction ;  and  the  further  rule,  that  a 
bailee  of  personal  property  cannot  convey  the  title,  or  subject  it  to 
execution  for  his  own  debts,  until  the  condition  on  which  the  agree- 
ment to  sell  was  made,  has  been  performed. 

The  judgment  of  the  supreme  court  of  the  territory  of  Utah  is  af- 
firmed. 


CARPENTER  v.  SCOTT. 

(Supreme  Court  of  Rhode   Island,  ISSl.     1.3  R.   I.  477.) 

Matteson,  J.  This  is  an  action  of  replevin  to  recover  possession 
of  a  rolling  mill,  attached  by  the  defendant,  a  deputy  sheriff.  On  the 
17th  day  of  November,  1879,  the  Willets  Manufacturing  Company  de- 
livered to  John  Anthony  the  mill  in  question  under  an  agreement,  pur- 
porting to  be  a  lease,  by  which  Anthony  was  to  pay  them  for  the  mill 
five  hundred  dollars,  in  twenty  monthly  installments  of  twenty-five 
dollars  each,  the  first  on  the  date  named  and  the  rest  on  the  17th  day 
of  each  succeeding  month,  with  interest  at  seven  per  cent,  per  annum. 
If  Anthony  failed  to  make  any  payment  within  five  days  after  the 
date  specified  for  such  payment,  the  Willets  Manufacturing  Company 
might  terminate  the  contract  and  take  immediate  possession  of  the 
mill.  At  the  expiration  of  the  lease,  Anthony,  having  complied  vvith 
its  conditions,  was  to  receive  a  bill  of  sale  of  the  mill. 

At  the  date  of  the  delivery  of  the  mill  to  Anthony,  he  was  a  member 


238  RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  (Ch.  2 

of  a  partnership  composed  of  Thomas  Anthony,  Thomas  J.  Linton, 
and  himself.  The  business  of  the  partnership  was  at  that  time,  and 
until  the  11th  day  of  March  1880,  continued  to  be,  transacted  in  the 
name  of  John  Anthony.  The  contract  for  the  mill,  though  in  his  name, 
was  for  the  benefit  of  the  partnership,  and  the  partnership  funds  were 
used  for  the  first  payment,  and  for  the  successive  payments  of  the  in- 
stallments as  they  became  due.  On  the  11th  day  of  March,  1880,  the 
partnership,  under  the  name  of  John  Anthony  &  Co.,  executed  and  de- 
livered to  the  plaintiff  a  mortgage,  signed  by  each  of  the  partners,  and 
purporting  to  convey,  besides  their  other  property,  the  mill  in  question, 
"subject  to  a  certain  claim  of  the  Willets  Manufacturing  Company." 
In  July  following  John  Anthony  withdrew  from  the  partnership,  and 
the  business  after  that  date  was  conducted  under  the  name  of  Thom- 
as Anthony  &  Co.  On  the  22d  day  of  June,  1881,  the  last  installment 
of  the  rent,  or  price,  of  the  mill  was  paid,  and  the  Willets  ISIanufac- 
turing  Company  gave  a  receipted  bill  of  sale  of  it  to  Thomas  Anthony 
&  Co.  This  bill  of  sale  named  John  Anthony  as  the  vendee,  and  ac- 
knowledged payment  of  the  price  by  Thomas  Anthony  &  Co.,  for 
John  Anthony.  On  the  same  day  the  Willets  Manufacturing  Company 
brought  suit  against  John  Anthony  for  an  indebtedness  of  his  to  them, 
and  delivered  the  writ  to  the  defendant  for  service,  which  was  made 
in  part  by  attaching  the  mill  replevied  in  this  suit. 

The  question  raised  by  the  foregoing  facts  is,  whether  the  mortgage 
to  the  plaintiff,  in  so  far  as  it  purports  to  convey  the  rolling  mill,  is 
valid  as  against  the  attachment  of  the  Willets  Manufacturing  Com- 
pany. We  think  it  is.  Such  a  transaction  as  that  above  described,  by 
which  the  mill  in  question  passed  into  the  possession  of  John  Anthony, 
though  in  form  a  lease,  is  regarded  in  law  as  a  conditional  sale.  Good- 
ell  V.  Fairbrother,  12  R.  I.  233,  34  Am.  Rep.  631 ;  Currier  v.  Knapp, 
117  Mass.  324;  Greer  v.  Church  &  Co.,  13  Bush  (Ky.)  430,  433,  434. 
Under  it  the  vendee  acquires,  not  only  the  right  of  possession  and 
use,  but  the  right  to  become  the  absolute  owner  upon  complying  with 
the  terms  of  the  contract.  These  are  rights  of  which  no  act  of  the 
vendor  can  divest  him,  and  which,  in  the  absence  of  any  stipulation 
in  the  contract  restraining  him,  he  can  transfer  by  sale,  or  mortgage. 
Upon  performance  of  the  condition  of  the  sale,  the  title  to  the  proper- 
ty vests  in  the  vendee,  or  in  the  event  that  he  has  sold,  or  mortgaged 
it,  in  his  vendee,  or  mortgagee,  without  further  bill  of  sale.  Day  v. 
Basset,  102  Mass.  445,  447;  Crompton  v.  Pratt,  105  Mass.  255,  258; 
Currier  v.  Knapp,  117  Mass.  324,  325,  326;  Chace  v.  Ingalls,  122  Mass. 
381,  383.  It  follows  from  these  principles,  that  immediately  on  pay- 
ment of  the  last  installment  of  the  price,  the  title  to  the  rolling  mill 
vested  in  John  Anthony,  or  in  him  and  his  copartners,  it  is  immaterial 
which,  and  that,  thereupon,  the  plaintiff's  mortgage  became  valid,  and 
entitled  to  priority  over  the  attachment  of  the  Willets  Manufacturing 
Company  subsequently  made. 


Sec.  10)         RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  239 

The  defendant  contends  that  the  plaintiff's  mortgage  is  invalid  as 
against  the  attachment,  because  the  plaintiff  had  never  taken  posses- 
sion of  the  rolling  mill  under  it.  In  support  of  this  claim  he  cites 
Williams  v.  Briggs,  11  R.  I.  476,  23  Am.  Rep.  518,  and  Cook  v.  Cor- 
thell,  11  R.  I.  482,  23  Am.  Rep.  518.  These  cases  are,  however,  wide- 
ly different  from  the  present.  They  do,  indeed,  hold  that,  at  law,  a 
mortgage  of  personal  property  to  be  subsequently  acquired  conveys  no 
title,  unless  possession  of  the  property  when  acquired  is  given  to,  or 
taken  by,  the  mortgagee.  They  rest  upon  the  familiar  maxim,  that 
no  one  can  grant,  or  charge,  that  which  he  does  not  have.  At  the 
execution  of  the  mortgages  the  mortgagors  had  no  interest  whatever  in 
the  property,  the  title  to  which  was  involved  in  these  suits.  It  was 
property  which  was  to  come  into  their  possession,  and  in  which  they 
were  to  acquire  an  interest,  in  the  future,  and  which  might  not  have 
been  in  existence,  even,  when  the  mortgages  were  made.  In  the  pres- 
ent case,  on  the  contrary,  the  mortgagors  at  the  making  of  the  mort- 
gage had  the  possession  of  the  property,  with  the  right  to  its  posses- 
sion and  use,  and  the  right  to  become  its  absolute  owners  on  complying 
with  the  conditions  of  the  sale.  These  rights  constituted  an  actual, 
present  interest  in  the  property,  which,  as  we  have  seen  above,  is  ca- 
pable of  transfer  by  sale  or  mortgage. 

In  accordance  with  the  stipulation  of  the  parties,  judgment  is  ren- 
dered for  the  plaintiff  for  costs. 

Judgment  for  plaintiff  for  costs. 


HERVEY  v.  DIMOND. 

(Supreme  Court  of  New  Hampshire,  1S92.     67  N.  H.  342,  39  Atl.  331,  68  Am. 

St.  Rep.  673.) 

Replevin,  of  household  furniture.  Facts  agreed.  February  5,  1891, 
the  plaintiffs  delivered  from  their  place  of  business,  in  Boston,  to  one 
Fred  D.  Story,  at  Penacook,  a  lot  of  household  furniture,  under  a 
contract  in  writing,  in  which  it  was  stipulated  that  he  had  hired  and 
received  the  same  of  the  plaintiffs,  and  would  pay  them,  for  the  rent 
and  use  thereof,  the  sum  of  $5  per  month,  until  the  price,  $77.38, 
should  be  paid ;  that  the  plaintiffs  were  to  remain  absolute  owners  of 
the  property  until  the  full  price  should  be  paid,  when  they  were  to 
"release  their  claim  and  right  in  the  goods  above  leased"  to  Story. 
The  contract  further  provided  that  if  Story  should  fail  to  pay  the  rent 
as  stipulated,  or  should  remove  the  goods  from  Penacook,  or  sell  or 
underlet  them,  or  suffer  them  to  be  attached,  he  would  thereby  forfeit 
all  right  to  the  goods,  and  to  the  further  use  of  them,  and  to  all  mon- 
eys paid,  and  that  the  plaintiffs  might  enter  the  premises  of  Story,  and 
remove  the  same.  August  14,  1891,  Story  paid,  and  the  plaintiffs  ac- 
cepted, a  monthly  installment,  making  the  whole  amount  paid  by  him 
under  the  contract  $30.     On  that  day,  the  defendant,  as  deputy  sher- 


240  RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  (Ch.  2 

iff,  attached  the  goods,  as  the  property  of  Story,  in  the  freight  station 
at  Penacook,  awaiting  shipment  to  Boston,  on  a  writ  in  favor  of  one 
\^'hitaker.  In  answer  to  a  letter  from  the  defendant  inquiring  the 
amount  due  them  upon  the  contract,  the  plaintiffs  replied,  August  18th, 
that  the  balance  due  was  $47.38 ;  that  they  had  given  Story  permis- 
sion to  move  the  goods  to  East  Boston ;  and  concluded,  "So,  we  do 
not  presume  that  you  would  care  to  detain  the  goods  knowing  they 
were  leased  property." 

A  demand  made  September  8th  for  the  goods  was  refused.  On 
that  day,  Whitaker,  the  attaching  creditor,  tendered  them  $47.38, 
which  was  refused.  Later,  the  same  day,  the  defendant  demanded  in 
writing,  of  the  plaintiff's,  an  account,  under  oath,  of  the  sum  due  them 
by  virtue  of  any  contract  with  Story.  The  plaintiffs  never  made  any 
reply  to  the  demand.  September  12,  1891,  they  replevied  the  goods, 
and  took  them  to  Boston. 

Smith,  J.  The  contract  (called  a  "lease")  does  not,  in  legal  effect, 
differ  materially  from  a  conditional  sale.  Although,  by  the  contract, 
it  was  stipulated  that  the  plaintiffs  should  remain  absolute  owners  of 
the  goods  until  the  full  price  should  be  paid,  it  does  not  follow  that 
Story  had  no  interest  in  the  property.  He  had  the  right  to  pay  the 
balance  due,  and  become  the  owner  of  the  property.  While  the  plain- 
tiffs remained  the  general  owners  until  the  full  price  should  be  paid. 
Story's  interest  was  that  of  a  special  owner,  which  the  law  recognizes 
and  protects.  It  was  an  assignable  and  attachable  interest,  his  assignee 
or  attaching  creditor  acquiring  the  same  rights  as  he  had.  If  Story 
failed  to  make  the  monthly  payments  according  to  the  contract,  and  the 
plaintiffs  might  for  that  cause  have  asserted  a  forfeiture,  they  waived 
the  default  by  accepting  an  installment  August  14th. 

Although  the  attachment  was  nominally  of  the  property,  yet  it  plain- 
ly appears  that  Whitaker  did  not  intend  to  attach  in  disregard  of  the 
plaintiffs'  rights,  and  he  fully  recognized  them  by  tendering  the 
amount  due.  If  necessary,  the  officer's  return  can  be  amended  to 
conform  to  the  fact.  By  the  tender  of  the  amount  due  the  plaintiff's, 
their  title  to  the  goods  became  vested  in  Story,  subject  to  Whitaker's 
attachment.  As  Whitaker  seasonably  tendered  the  amount  of  their 
claim,  the  defendant  is  entitled  to  judgment  for  the  value  of  the  prop- 
erty, and  for  his  costs.  A  few  of  the  authorities  in  support  of  these 
views  are  Sargent  v.  Gile,  8  N.  H.  325 ;  Porter  v.  Pettengill,  12  N. 
H.  299;  Bailey  v.  Colby,  34  N.  H.  29,  66  Am.  Dec.  752;  McFarland 
v.  Farmer,  42  N.  H.  386;   Partridge  v.  Philbrick,  60  N.  H.  556. 

There  is  a  clause  in  the  contract  that  Story,  by  suft'ering  the  prop- 
erty to  be  attached,  would  forfeit  all  right  to  and  use  of  the  goods. 
It  does  not  appear  that  Story  procured  or  advised  the  attachment  to 
be  made.  Whether  he  can  be  said  to  have  "suffered"  the  attachment 
to  be  made,  when  it  was  not  made  by  his  procurement  or  with  his 
consent,  and  when,  so  far  as  appears,  he  could  not  prevent  it,  is  a 


Sec.  10)         RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  241 

question  not  made.     The  plaintiffs  have  not  contended  or  suggested 
that  Story's  interest  in  the  goods  was  terminated  by  the  attachment. 
Case  discharged.    All  concurred.^" 


SPOONER  V.  CUMMINGS. 

SAME  V.  HANDLEY. 

(Supreme  Judicial  Court  of  Massachusetts,  1890.     151  Mass.  313,  23  N.  E.  839.) 

Two  actions  of  replevin,  of  a  horse  and  of  a  mare  respectively. 
The  answer  in  each  case  contained  a  general  denial,  and  that  in  the 
second  case  also  set  up  fraud  and  laches  on  the  part  of  the  plain- 
tiff, and  an  authority  from  him  to  sell  the  mare  to  the  defendant. 
Trial  in  the  Superior  Court,  before  Aldrich,  J.,  who  allowed  a  bill 
of  exceptions   in  each   case. 

In  the  first  case  there  was  evidence  that  on  May  26,  1888,  the 
plaintiff,  who  then  owned  the  horse  in  question,  sold  it  to  one  Pope, 
who  bought  and  received  it  upon  an  agreement  in  writing  signed 
by  him,  which  recited  that  the  horse  was  to  be  and  remain  the  en- 
tire and  absolute  property  of  the  plaintiff  until  paid  for  in  full  by 
Pope ;  that  the  plaintiff  was  a  dealer  in  horses,  and  had  sold  horses 
to  Pope  for  several  years ;  and  that  Pope,  before  paying  the  plaintiff 
for  the  horse  in  question,  resold  it  to  the  defendant,  on  June  2,  1888, 
and  received  payment  for  it  from  him. 

The  plaintiff  contended  and  asked  the  judge  to  rule,  that  the  de- 
fendant, under  his  answer,  could  only  be  permitted  to  show  that  the 
conditional  agreement  was  not  made,  or  that  the  horse  had  been  paid 
for  by  Pope.  The  judge  declined  so  to  rule,  but  ruled  that  the  de- 
fendant might  be  permitted  to  show  that  the  plaintiff  gave  to  Popej 
authority,  express  or  implied,  by  the  course  of  dealing  between  themJ 
to  sell  the  horse  before  payment ;    and  the  plaintiff  excepted. 

The  defendant  thereupon  introduced  evidence  which  showed  that 
for  a  long  period  the  plaintiff  and  Pope  had  engaged  in  similar  trans- 
actions, and  that,  according  to  the  course  of  dealing  between  them. 
Pope  purchased  horses  from  the  plaintiff,  and  gave  him  similar  con- 
ditional agreements  in  writing ;  and  that  the  plaintiff  would  urge 
Pope  to  sell  such  horses,  and  the  latter,  before  paying  for  them, 
would  resell  them  and  send  money  to  the  plaintiff,  which  the  latter 
would  apply  as  he  saw  fit  on  any  of  the  agreements.  One  Trull 
was  permitted  to  testify  against  the  plaintiff's  objection,  that  about 
the  middle  of  June,  1888,  the  plaintiff  told  him  to  tell  Pope  that  he 

5  6 As  to  the  rights  of  the  trustee  in  bankruptcy  of  a  conditional  vendee, 
see  In  re  Williainslnirg  Knittiufc  Mill  (D.  C.)  190  Fed.  871  (1911);  In  re 
Kreuger  (D.  C.)  199  Fed.  367  (1912). 

Wood  w.  Sales — 16 


242  RETENTION  OF  PROPERTY  BY  SELLER  AFTER  DELIVERY  (Cll.  2 

bad  a  carload  of  horses  coming,  and  to  sell  as  many  horses  as  he 
could. 

The  judge  gave  an  instruction  among  others  to  the  jury,  which 
permitted  them  to  find,  from  the  course  of  dealing  between  the  par- 
ties, that  the  plaintiff  had  given  Pope  implied  authority  to  sell  the 
horse  in  question ;  and  further  instructed  them,  that,  if  the  plaintiff, 
notwithstanding  the  conditional  agreement  between  the  parties,  con- 
sented that  Pope  might  sell  the  horse  to  the  defendant,  trusting  that 
Pope  would  send  him  the  money  in  payment  for  it,  he  could  not 
set  up  the  conditional  agreement  with  Pope  as  against  the  defendant. 

The  jury  returned  a  verdict  for  the  defendant ;  and  the  plaintiff 
alleged  exceptions. 

Knowlton,  J.^^  Under  the  answer  of  the  defendant,  any  evidence 
was  competent  which  tended  to  contradict  the  contention  of  the 
plaintiff  that  the  title  to  the  horse  and  the  right  of  possession  were 
in  him.  Verry  v.  Small,  16  Gray,  121,  122;  Whitcher  v.  Shattuck,  3 
Allen,  319. 

The  defendant  was  not  a  party  to  the  written  contract  between  the 
plaintiff  and  Pope,  but  claimed  outside  of  it,  and  in  support  of  his 
own  title  he  might  show  by  parol  what  was  the  real  arrangement 
between  them,  even  if  it  differed  from  that  contained  in  the  writing. 
Kellogg  V.  Tompson,  142  Mass.  76,  6  N.  E.  860.  If  the  plaintiff 
expressly  or  impliedly  authorized  the  sale  by  Pope  to  him,  he,  having 
bought  in  good  faith  from  the  apparent  owner,  acquired  a  good  title. 
It  is  immaterial  whether  his  right  depends  upon  an  actual  authority 
to  make  the  sale,  or  upon  facts  which  estop  the  plaintiff  from  deny- 
ing the  validity  of  the  sale.  Burbank  v.  Crooker,  7  Gray,  158,  159, 
66  Am.  Dec.  470;  Haskins  v.  Warren,  115  Mass.  514,  538;  Tracy 
V.  Lincoln,  145  Mass.  357,  14  N.  E.  122 ;  Bank  v.  Buffinton,  97  Mass. 
498;  Fowler  v.  Parsons,  143  Alass.  401,  9  N.  E.  799. 

The  testimony  as  to  the  course  of  dealing  between  the  plaintiff 
and  Pope,  involving  a  long  series  of  transactions,  all  of  the  same 
kind,  and  conducted  generally  in  the  same  way,  was  competent,  as 
tending  to  show  an  expectation  and  understanding  on  the  part  of  both 
that  Pope  would  sell  the  horses  which  he  bought  of  the  plaintiff 
as  he  had  opportunity,  and  that  he  was  impliedly  authorized  to  sell 
this  horse  to  the  defendant.  Hubbell  v.  FHnt,  13  Gray,  277;  Bank 
V.  Goodsell,  107  Mass.  149;  Lynde  v.  McGregor,  13  Allen,  172; 
Bragg  v.  Railroad  Corp.,  9  Allen,  54.  The  testimony  of  Trull,  as 
to  the  message  sent  to  Pope  by  the  plaintiff  about  the  middle  of 
June,  was  of  a  conversation  so  soon  after  the  sale  of  June  2d  to 
the  defendant  that  the  judge  might  well  admit  it  in  his  discretion. 
It  related  to  the  general  course  of  dealing,  of  which  the  sale  to  Pope 
of  the  horse  replevied  was  a  part. 

57  The  statement  and  the  opinion  in  the  second  case  are  omitted. 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  243 

The  jury  were  rightly  permitted  to  find  that  the  plaintiff  impliedly  / 
authorized  the  sale  by  Pope  to  the  defendant,  and  that  he  was  estop-/ 
ped  to  deny  the  vaHdity  of  the  title  which  the  defendant  acquired, 
relying  on  Pope's  possession  and  apparent  ownership. 

Exceptions  overruled. ^^ 


SECTION  11.— EFFECT  OF  RETENTION  OF  POSSESSION 
BY  SELLER  AFTER  TRANSFER  OF  PROP- 
ERTY TO  BUYER 


EDWARDS  V.   HARBEN. 

(Court   of  King's  Bench,   17S8.     2   Term   Rep.    5S7.) 

Assumpsit  for  goods  sold  to  the  defendant's  testator.  The  defend- 
ant pleaded  that  he  was  not  executor,  nor  had  ever  administered  as 
such ;  and,  secondly,  that  he  had  fully  administered,  &c.  Replication, 
that  he  had  administered  divers  goods  &c.  of  the  testator ;  and  issue 
thereon.  And  to  the  second  plea,  that  the  defendant,  at  the  time  of 
exhibiting  the  plaintiff's  bill,  had,  and  still  has,  goods  and  chattels  of 
che  deceased  in  his  hands  sufficient  to  satisfy  the  plaintiff's  demands ; 
and  issue  thereon.  At  the  trial  at  the  last  Assizes  at  East  Grinstead, 
Sussex,  a  verdict  was  found  for  the  plaintiff  with  £22.  18s.  6d.  dam- 
ages and  40s.  costs,  subject  to  the  opinion  of  this  court  on  the  follow- 
ing case: 

William  Tempest  Mercer  in  his  life-time,  and  before  the  time  of 
the  execution  of  the  bill  of  sale  herein-after  mentioned,  was  indebted 
to  the  plaintiff  in  the  sum  of  i22.  18s.  6d.  for  goods  sold  and  delivered, 
which  sum  still  remains  due  to  the  plaintiff.  William  Tempest  Mer- 
cer, at  the  time  of  the  execution  of  the  said  bill  of  sale,  was  likewise 
indebted  to  the  defendant  in  the  sum  of  £191.  for  money  lent.  On 
the  27th  of  March  1786  Tempest  Mercer  offered  to  the  defendant 
a  bill  of  sale  of  his  goods,  household  furniture,  and  stock  in  trade,  in 
his  house  at  Lewes,  by  way  of  security  for  the  said  debt.  The  de- 
fendant refused  to  accept  of  the  same,  unless  he  should  be  at  liberty 
to  enter  upon  the  effects  and  sell  them  immediately  after  the  expira- 

58  "If,  however,  the  resale  made  by  the  buyer  is  of  a  totally  different  char- 
acter from  that  which  the  seller  authorized,  or  is  estopped  to  deny  that  he 
authorized,  this  principle  does  not  apply."  Williston,  Sales,  §  329.  See  Bur- 
bank  V.  Crooker,  7  Gray,  158,  66  Am.  Dec.  470  (1856).  But  compare  Bass, 
Heard  &  Howie  v.  International  Harvester  Co.,  160  Ala.  154,  53  South.  1014, 
33  L.  R.  A.  (N.  S.)  374  (1910). 

As  to  estoppel  of  seller  in  favor  of  buyer's  creditors,  see  Flint  Waiion 
Works  V.  Maloney  (Del.)  81  Atl.  502  (1911) ;  note,  12  Columbia  Law  Rev.  180 ; 
Williston,  Sales,  §  329. 


244  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch.  2 

tion  of  fourteen  days  from  the  execution  thereof,  in  case  the  money 
should  not  be  sooner  paid;  to  which  Tempest  Mercer  agreed,  and 
accordingly  on  the  same  day  executed  a  bill  of  sale  in  the  common 
form,  by  which  Mercer  bargained  and  sold  to  the  defendant  for  ever 
his  household  furniture,  medicines,  stock  in  trade  [particularly  speci- 
fying them],  and  all  and  every  other  the  goods,  chattels,  and  effects 
whatsoever,  in  and  about  his  dwelling-house  and  premises  at  Lewes. 
Immediately  upon  the  execution  of  the  bill  of  sale  possession  was 
delivered  to  the  defendant  in  the  manner  described  therein,  viz.  by 
the  delivery  of  one  cork  screw  in  the  name  of  the  whole,  but  in  no 
other  manner  whatsoever.  All  the  effects  described  in  the  bill  of  sale 
remained  in  the  possession  of  William  Tempest  ]\Iercer  until  the  time 
of  his  death,  which  happened  on  the  7th  of  April,  1786.  On  the 
8th  of  April,  1786,  being  before  the  expiration  of  fourteen  days  from 
the  execution  of  the  bill  of  sale,  the  defendant  entered  and  took  pos- 
session of  the  effects  contained  in  the  bill  of  sale,  being  then  in  the 
house  of  the  deceased,  and  afterwards  sold  the  same  for  £226.  7s. 
5d.  William  Tempest  Mercer  died  intestate,  and  no  letters  of  admin- 
istration were  taken  out  to  the  deceased  by  the  defendant,  or  by  any 
other  person,  before  the  commencement  of  this  action.  The  question 
for  the  opinion  of  the  court  is,  whether  the  defendant  is  entitled  to 
retain  the  produce  of  the  said  eft'ects,  or  at  least  the  value  of  il91., 
the  consideration  of  the  bill  of  sale:  or  whether  the  bill  of  sale  is 
void  as  against  the  creditors  of  William  Tempest  ^^lercer;  and  the 
plaintiff"  in  this  action  is  entitled  to  recover  his  debt  of  £22.  18s.  6d. 
against  the  defendant,  as  executor  de  son  tort. 

BuLLKR,  J.  This  is  an  action  brought  by  the  plaintiff,  v\-ho  is  a 
creditor  of  Mercer,  against  the  defendant  as  executor.  It  does  not 
appear  by  the  case  that  any  other  goods  than  those  mentioned  in  the 
bill  of  sale  came  to  the  defendant's  hands.  The  bill  of  sale  is  dated 
on  the  27th  March,  1786,  and  is  a  general  bill  of  sale  of  all  the  de- 
fendant's household  furniture  and  stock  in  trade.  This  bill  of  sale 
is  to  take  eff'ect  immediately  on  the  face  of  it:  but  there  was  an 
agreement  between  fiercer  and  the  defendant,  that  the  goods  should 
not  be  sold  till  the  expiration  of  fourteen  days  from  the  date  of  its 
I,  execution ;  and  no  possession  was  actually  taken  till  after  the  death 
'  of  Mercer,  which  happened  within  the  fourteen  days :  but  there  was  a 
formal  delivery  of  a  cork  screw  in  the  name  of  the  whole.  On  this 
case  two  questions  arise:  First,  whether  this  bill  of  sale  be  void  or 
not;  and  Secondly,  if  void,  whether  the  defendant  by  having  taken 
these  goods  under  the  bill  of  sale,  made  himself  liable  as  an  executor 
de  son  tort. 

The  first  question  came  before  the  court  in  the  last  term  in  the  case 
of  Bamford  v.  Baron,  2  Term.  Rep.  594,  note,  on  a  motion  for  a  new 
trial  from  the  Northern  circuit :  and  after  hearing  that  case  argued, 
we  thought  it  right  to  take  the  opinion  of  all  the  judges  upon  it.    Ac- 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  245 

cordingly  we  consulted  with  all  the  judges,  who  are  unanimously  of 
opinion  that  unless  possession  accompanies  and  follows  the  deed,  it  is 
fraudulent  and  void ;  I  lay  stress  upon  the  words  "accompanies  and 
follows,"  because  I  shall  mention  some  cases  where,  though  possession 
was  not  delivered  at  the  time,  the  conveyance  was  not  held  to  be 
fraudulent.  There  are  many  cases  on  this  subject;  from  which  it 
appears  to  me  that  the  principle  which  I  have  stated  never  admitted 
of  any  serious  doubt.  So  long  ago  as  in  the  case  in  Bulstrode,  the 
court  held  that  an  absolute  conveyance  or  gift  of  a  lease  for  years, 
unattended  with  possession,  was  fraudulent;  but  if  the  deed  or  con- 
veyance be  conditional,  there  the  vendor's  continuing  in  possession' 
does  not  avoid  it,  because  by  the  terms  of  the  conveyance  the  vendee 
is  not  to  have  the  possession  till  he  has  performed  the  condition.  Now 
here  the  bill  of  sale  was  on  the  face  of  it  absolute,  and  to  take  place 
immediately,  and  the  possession  was  not  delivered ;  and  that  case 
makes  the  distinction  between  deeds  or  bills  of  sale  which  are  to 
take  place  immediately,  and  those  which  are  to  take  place  at  some 
future  time.  For  in  the  latter  case  the  possession  continuing  in  the 
vendor  till  that  future  time,  or  till  that  condition  is  performed,  is  con- 
sistent with  the  deed ;  and  such  possession  comes  within  the  rule, 
as  accompanying  and  following  the  deed. 

That  case  has  been  universally  followed  by  all  the  cases  since.  One 
of  the  strongest  is  quoted  in  Bucknal  and  Others  v.  Roiston,  Pr.  in 
Chan.  287 ;  there  one  Brewer,  having  shipped  a  cargo  of  goods,  bor- 
rowed of  the  plaintiff  £600.  on  bottomry,  and  at  the  same  time  made  a 
bill  of  sale  of  the  goods,  and  of  the  produce  and  advantage  thereof,  to 
the  plaintiff;  there  Sir  E.  Northey  cited  a  case  "where  a  man  took 
out  execution  against  another;  by  agreement  between  them  the  owner 
was  to  keep  the  possession  of  them  upon  certain  terms,  and  after- 
wards another  obtained  judgment  against  the  same  man,  and  took  the 
goods  in  execution :  and  it  was  held  that  he  might,  and  that  the  first 
execution  was  fraudulent  and  void  against  any  subsequent  creditor, 
because  there  was  no  change  of  the  possession,  and  so  no  alteration 
made  of  the  property."  And  he  said  it  had  been  ruled  forty  times 
in  his  experience  at  Guildhall,  that,  if  a  man  sell  goods,  and  still 
continue  in  possession  as  visible  owner  of  them,  such  sale  is  fraudu- 
lent and  void  as  to  creditors,  and  that  the  law  has  been  always  sol 
held.  The  lord  chancellor  held  in  the  principal  case  that  the  trust  of 
those  goods  appeared  upon  the  very  face  of  the  bill  of  sale.  That 
though  they  were  sold  to  the  plaintiff's,  yet  they  trusted  Brewer  to 
negotiate  and  sell  them  for  their  advantage,  and  Brewer's  keeping 
possession  of  them  was  not  to  give  a  false  credit  to  him  as  in  other 
cases  which  had  been  cited,  but  for  a  particular  purpose  agreed  upon 
at  the  time  of  the  sale.  So  that  the  Chancellor  in  that  case  proceeded 
on  the  distinction  which  I  have  taken ;  he  supported  the  deed,  because 
the  want  of  possession  was  consistent  with  it.     This  has  been  argued 


246  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch.  2 

by  the  defendant's  counsel  as  being  a  case  in  which  the  want  of  pos- 
session is  only  evidence  of  fraud,  and  that  it  was  not  such  a  circum- 
stance per  se  as  makes  the  transaction  fraudulent  in  point  of  law: 
that  is  the  point  which  we  have  considered,  and  we  are  all  of  opinion 
that  if  there  is  nothing  but  the  absolute  conveyance,  without  the  pos- 
session, that  in  point  of  law  is  fraudulent.  On  the  other  hand  there 
are  cases,  where  the  vendor  has  continued  in  possession,  and  the  bill 
of  sale  has  not  been  adjudged  fraudulent,  if  the  want  of  immediate 
possession  be  consistent  with  the  deed.  Such  was  the  case  of  Lord 
Cadogan  v.  Kennet,  Cowp.  432 ;  because  there  the  possession  fol- 
lowed the  deed.  So  also  the  case  of  Haslington  and  Another  v.  Gill 
and  Another,  Sheriff  of  Middlesex,  Tr.  24  Geo.  Ill,  B.  R. ;  there  per- 
sonal property,  consisting  (inter  alia)  of  some  cows,  was  settled  on  the 
marriage  of  the  plaintiff's  wife  on  certain  trusts;  and  the  court  held 
that  only  those  which  were  purchased  after  the  marriage  could  be 
taken  to  satisfy  the  debts  of  the  husband. 

The  second  question  then  is,  whether  the  defendant's  having  taken 
possession  of  these  goods  after  Alercer's  death,  though  under  the  bill 
of  sale,  will  make  him  an  executor  de  son  tort.  The  two  cases,  which 
were  cited  by  the  defendant's  counsel,  are  decisive  of  this  point.  In 
Bac.  Abr.  (2  Bac.  Abr.  605)  it  is  said  "if  a  man  make  a  deed  of  gift 
of  his  goods  in  his  life-time  by  covin  to  oust  his  creditors  of  their 
debts,  yet  after  his  death  the  vendee  shall  be  charged  for  them." 
There  too  the  possession  was  delivered  to  the  vendee.  To  support 
this  doctrine  13  H.  IV,  4,  b,  Rol.  Abr.  549,  are  both  quoted.  Then  in 
what  manner  shall  he  be  charged?  He  can  only  be  charged  as  ex- 
ecutor; because  any  intermeddling  with  the  intestate's  effects  makes 
him  so.  The  cases  in  Cro.  Fa.  and  Yelv.  cited  at  the  bar  prove  it, 
and  state  the  manner  in  which  he  shall  be  charged.  There  is  also 
another  strong  case  on  this  point  in  Dyer,  Dy.  166,  b.  In  short  every 
intermeddling  after  the  death  of  the  party  makes  the  person  so  inter- 
meddling an  executor  de  son  tort. 

Grose,  J.,  observed  that  it  was  unnecessary  to  repeat  what  had  been 
said  from  the  bench;-  but  said  that  he  was  perfectly  satisfied  that 
the  law  was  as  had  been  stated. 

Postea  to  the  plaintiff'.^^ 

B9  "Sales  made  by  debtors  in  fraud  of  creditors  are  usually  regarded  as  be- 
ing governed  by  the  statute  of  13  Eliz.  c.  5,  and  the  decisions  made  under  it; 
but  other  statutes  had  been  previously  passed  on  the  same  subject,  and  in 
1776  Lord  Mansfield,  in  Cadogan  v.  Kennet  [Cowp.  432],  said  that  'the  prin- 
ciples and  rules  of  the  common  law,  as  now  universally  known  and  under- 
stood, are  so  strong  against  fraud  in  every  shape,  that  the  common  law 
would  have  attained  every  end  proposed  by  the  statutes  of  13  Eliz.  c.  5,  and 
27  Eliz.  c.  4.  The  former  of  these  statutes  relates  to  creditors  only ;  the 
latter  to  purchasers.  These  statutes  cannot  receive  too  liberal  a  construc- 
tion, or  be  too  much  extended  in  suppression  of  fraud.' 

"The  statute  of  13  Eliz.  c.  5  [made  perpetual  by  29  Eliz.  c.  5],  which  merely 
declared  the  common  law  [Twyne's  Case,  1601,  3  Co.  SOa],  provided  among 
other  things  that  all  alienations  of  goods  and  chattels  made  to  the  intent 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  247 

MARTINDALE  et  al.  v.  BOOTH. 
(Court  of  King's  Beuch,  1S32.     3  Barn.  &  Ad.  49S.) 

Trespass  for  taking  away  and  converting  furniture,  goods,  and 
chattels  of  the  plaintiffs.  Plea,  not  guilty.  At  the  trial  before  Lord 
Tenterden,  C.  J.,  at  the  Middlesex  sittings  after  Trinity  term,  1829, 
the  jury  found  a  verdict  for  the  plaintiffs  for  £93.  16s.,  subject  to  the 
opinion  of  this  Court  on  the  following  case : 

Before  the  8th  of  May  1828,  one  W.  G.  Priest,  who  kept  the  Pea- 
cock Tavern  in  Maiden  Lane,  Middlesex,  was  indebted  to  the  plain- 
tiffs, wine  and  spirit  merchants,  in  ilO.  for  wine  and  spirits.  Priest 
having  applied  to  them  for  a  further  supply  of  wine  upon  credit,  and 
for  a  loan  of  money,  the  plaintiffs  refused  to  give  him  any  further 
credit,  or  to  lend  him  any  money  unless  he  would  give  them  satis- 
factory security.  Priest  then  proposed  to  execute  a  bill  of  sale  to 
them  of  the  furniture  and  fixtures  in  the  Peacock  Tavern  as  such  se- 
curity, and  the  plaintiffs  agreed  to  give  him  credit  thereupon  to  the 
extent  of  £200.  After  Priest  and  the  plaintiffs  had  agreed  to  give 
and  accept  such  security,  but  before  the  bill  of  sale  was  actually 
executed,  the  plaintiffs,  upon  the  faith  of  such  agreement,  advanced 
to  Priest  £30.  in  money  and  to  the  amount  of  £60.  in  wine  and  spirits 
and  in  two  days  afterwards,  viz.  the  8th  of  May  1828,  in  pursuance 
of  the  agreement.  Priest  executed  and  delivered  to  the  plaintiffs  a 
bill  of  sale,  reciting  that  he,  Priest,  was  indebted  to  the  plaintiffs  in 
the  sum  of  £100.  for  money  advanced  and  goods  sold  and  delivered 
and  stating  that,  in  consideration  thereof,  he  granted,  bargained, 
sold,  and  assigned  unto  the  plaintiffs  all  the  household  goods,  furni- 
ture, &c.,  in  and  about  the  premises  called  the  Peacock  Tavern,  to 
hold  to  the  proper  use  and  behoof  of  the  plaintiffs  for  ever,  subject 
to  the  condition  thereinafter  contained :  proviso,  that  if  Priest  should 
pay  the  said  sum  of  £100.  with  lawful  interest  thereon  by  instalments, 
that  is  to  say  £25.  on  the  7th  of  June  then  next,  £25.  on  the  7th  of 
May  next,  and  £50.  the  residue  thereof,  on  the  7th  of  November, 
1829,  the  deed  should  be  void ;  but  in  default  of  payment  of  all  or 
any  of  the  said  sums  at  the  times  appointed,  then  it  should  be  law- 
ful, although  no  advantage  should  have  been  taken  of  any  previous 
default,  for  the  plaintiffs  forwith  to  enter  upon  the  premises,  and 
take  possession  of  the  goods,  furniture,  &c.,  and  absolutely  sell  and 
dispose  of  the  same.  There  was  a  power  reserved  to  the  plaintiffs, 
during  the  continuance  of  the  deed,  to  enter  upon  the  premises  and 
take  an  inventory;    and  also  at  any  time  after  default  as  aforesaid 

'to  delay,  hinder  or  defraud  creditors'  should,  only  as  against  creditors,  their 
representatives  and  assigns,  so  delayed,  etc.,  be  'clearly  and  utterly  void,' 
saving  always  assurances  upon  good  consideration  and  bona  fide  of  any  in- 
terest in  goods  and  chattels  to  any  person  not  having  any  notice  of  the 
fraud."     Benjamin,  Sales  (5th  Eng.  Ed.)  p.  495. 


248  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch.  2 

to  take  and  retain  possession  of  the  goods  until  they  should  deem  it 
expedient  to  sell.  Then  followed  a  proviso,  "that  until  default  should 
be  made  in  payment  of  all  or  any  of  the  said  sums,  it  should  be  law- 
ful for  Priest  to  retain  and  keep  quiet  possession  of  all  and  singular 
the  said  household  goods,"  &c. 

Before  Priest  commenced  dealing  with  the  plaintififs,  he  had  mar- 
ried the  widow  of  one  Higman,  who  formerly  kept  the  Peacock 
Tavern,  and  who,  at  the  time  of  his  death,  was  indebted  to  Combe, 
Delafield  &  Co.  in  the  sum  of  illOO.  His  widow  being  executrix  of 
his  will,  on  her  marriage  with  Priest  they  both  became  possessed 
of  Higman's  effects ;  and  Priest,  by  way  of  security  for  the  said 
£1100.,  executed  a  warrant  of  attorney  to  Combe,  Delafield  &  Co., 
for  that  amount  in  November,  1823.  On  the  1st  of  November,  1828, 
Messrs.  Combe,  Delafield  &  Co.,  caused  judgment  to  be  entered  up 
on  the  warrant  of  attorney,  and  sued  out  a  writ  of  fi.  fa.  directed  to 
the  defendants  Booth  and  Copeland,  then  slieriflf  of  Middlesex,  who 
thereupon  issued  their  warrant  to  Wilson,  the  other  defendant,  their 
officer,  and  he  seized  and  took  in  execution  the  goods  in  question, 
being  the  furniture  and  effects  in  the  Peacock  Tavern.  While  the 
sheriff  remained  in  possession,  the  plaintiffs  came  upon  the  premises, 
gave  the  defendants  notice  of  the  bill  of  sale,  and  required  them  to 
relinquish  possession,  which  was  refused,  and  the  sheriff  sold  the 
goods. 

I  Parke,  J.  I  am  of  the  same  opinion.  I  think  that  the  want  of 
delivery  of  possession  does  not  make  a  deed  of  sale  of  chattels  ab- 
solutely void.  The  dictum  of  Buller,  J.,  in  Edwards  v.  Harben,  2  T. 
R.  587,  has  not  been  generally  considered,  in  subsequent  cases,  to 
have  that  import.  The  want  of  delivery  is  only  evidence  that  the 
transfer  was  colourable.  In  Benton  v.  Thornhill,  2  Marshall,  427,  it 
was  said  in  argument,  that  want  of  possession  was  not  only  evidence 
of  fraud,  but  constituted  it;  but  Gibbs,  C.  J.,  dissented;  and  al- 
though the  vendor  there,  after  executing  a  bill  of  sale,  was  allowed 
to  remain  in  possession,  Gibbs  C.  J.,  at  the  trial,  left  it  to  the  jury 
to  say,  whether  under  all  the  circumstances,  the  bill  of  sale  was 
fraudulent  or  not.  It  is  laid  down  in  Sheppard's  Touchstone,  224 
(7th  ed.),  "that  a  bargain  and  sale  may  be  made  of  goods  and  chat- 
tels, without  any  delivery  of  any  part  of  the  things  sold ;"  and,  after- 
wards, in  page  227,  it  is  said,  "that  the  word  gift  is  often  applied 
to  movable  things,  as  trees,  cattle,  household  stuff,  Sec,  the  prop- 
erty whereof  may  be  altered  as  well  by  gift  and  delivery  as  by  sale 
and  grant,  and  this  is,  or  may  be,  either  by  word  or  writing;"  and 
in  a  note  to  this  passage  by  the  editor,  it  is  said,  "that,  by  the  civil 
law,  a  gift  of  goods  is  not  good  wathout  delivery,  yet  in  our  law  it 
is  otherwise,  when  there  is  a  deed:  also  in  a  donatio  mortis  causa, 
there  must  be  a  delivery."  Then  it  is  evident  that  the  bill  of  sale, 
in  this  case,  without  delivery,  conveyed  the  property  in  the  house- 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  249 

hold  goods  and  chattels  to  the  plaintiffs.  It  may  be  a  question  for 
a  jury,  whether,  under  the  circumstances,  a  bill  of  sale  of  goods  and 
chattels  be  fraudulent  or  not;  and  if  there  were  any  grounds  for 
thinking  that  a  jury  would  find  fraud  here,  we  might,  this  being  a 
special  case,  infer  it;  but  there  is  no  ground  whatever  for  saying 
that  this  bill  of  sale  was  fraudulent.  It  was  given  for  a  good  con- 
sideration, for  money  advanced  to  Priest,  to  enable  him  to  carry 
on  his  trade,  and  his  continuance  in  possession  was  in  terms  pro- 
vided for.^'* 


LANFEAR  v.  SUMNER. 

(Supreme  Judicial  Court  of  Massachusetts,  1821.     17  Mass.  110, 
9  Am.  Dec.  119.) 

Trover  for  the  conversion  of  one  hundred  chests  of  young  hyson, 
and  fifty  chests  of  hyson  tea,  averred  to  be  the  property  of  the  plain- 
tiff. Trial  on  the  general  issue,  before  the  Chief  Justice,  November 
term,  1819. 

The  plaintiff,  to  prove  his  property,  produced  in  evidence  the  fol- 
lowing paper :  "For  value  received,  I  hereby  assign  and  set  over  to 
Ambrose  Lanfear,  and  to  his  assigns,  one  hundred  chests  of  young 
hyson  tea,  and  fifty  chests  of  hyson  tea,  shipped  at  Canton,  by  Ben- 
jamin C.  Wilcocks,  on  board  of  the  ship  Osprey,  Capt.  Brown,  bound 
to  Boston,  being  my  property  and  consigned  to  me.  Philadelphia,  July 
2d,  1819.    William  Wain." 

The  plaintiff  was  the  agent  of  the  house  of  Thomas  Wilson  &  Co., 
merchants  in  England,  to  whom  the  said  Wain  was  indebted  in  a  much 
larger  sum  than  the  value  of  the  teas.  By  the  testimony  of  the  said 
Wain,  and  other  testimony  in  the  case,  it  appeared  that  the  above- 
recited  paper  was  executed  and  delivered  to  the  plaintiff  before  two 
o'clock,  P.  M.  of  the  said  2d  of  July.  No  money  was  paid  by  the 
plaintiff,  nor  any  discharge  executed  of  the  debt  due  to  said  Wilson 
&  Co.,  or  any  part  thereof. 

The  action  was  defended  under  the  said  Sumner,  who,  as  a  deputy 
sheriff  of  Suft'olk,  had  attached  the  same  teas  at  the  suit  of  James  & 
Thomas  H.  Perkins  &  Co.,  merchants  in  Boston,  and  creditors  to  Wain 
to  a  large  amount,  upon  the  bills  of  exchange  drawn  upon  him  and 
by  him  accepted.  The  attachment  by  the  defendant  was  made  on  the 
same  second  of  July,  at  half  an  hour  past  five  o'clock  in  the  afternoon ; 
and  possession  of  the  teas  was  taken  by  him. 

60  Concurring  opinions  were  delivered  by  Lord  Tenterden,  C  J.,  and  Lit- 
tledale  and  Patteson,  J  J. 

For  a  statement  of  the  law  in  England  at  the  present  time,  see  Williston, 
Sales,  §  352. 


250  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch.  2 

It  appeared  that  the  paper  aforesaid,  purporting  to  be  an  assign- 
ment of  the  teas  in  question  to  the  plaintiff,  was  by  him  transmitted  to 
John  Dorr,  merchant  in  Boston,  as  soon  as  the  course  of  the  mail 
would  admit,  and  was  received  by  Dorr  on  the  5th  of  July,  who,  with- 
in an  hour  after  the  receipt  of  the  same,  made  demand  of  the  teas, 
by  virtue  of  an  authority  given  by  the  plaintiff  on  the  back  of  the 
paper ;   but  he  did  not  obtain  possession. 

It  appeared  that  the  teas  arrived  at  Boston,  in  the  ship  Osprey,  a 
day  or  two  before  the  said  2d  of  July,  consigned  by  the  said  Wilcocks 
to  the  said  J.  &  T.  H.  Perkins  &  Co.,  on  the  account  and  risk,  and  for 
the  use  of  the  said  Wain;  and  the  said  Perkins  &  Co.  had  entered 
them  in  the  custom-house,  and  had  given  bonds  for  the  duties  thereon. 
An  offer  was  made  by  Dorr,  in  behalf  of  the  plaintiff,  to  indemnify 
them  against  their  said  bonds,  and  to  pay  all  further  charges  thereon. 

A  verdict  was  taken  for  the  plaintiff  by  consent,  to  be  set  aside  if 
the  action  could  not  be  maintained  on  the  foregoing  facts,  and  a  non- 
suit entered;  otherwise  judgment  was  to  be  rendered  on  the  verdict, 
with  additional  interest. 

Jackson,  J.  Considering  this  case  in  the  most  favorable  view  for 
the  plaintiff",  it  is  the  case  of  two  creditors,  each  endeavoring  to  secure 
his  debt  out  of  the  same  fund.  Neither  party  had  notice  of  the 
measures  adopted  by  the  other ;  but  each  was  using  his  diligence  fair- 
ly, for  the  purpose  of  obtaining  payment  of  a  just  debt.  The  question 
is,  Which  acquired  the  best  legal  title?  In  this  statement  of  the  case, 
we  consider  ]\Iessrs.  Wilson  &  Co.,  for  whom  the  plaintiff'  was  agent, 
as  the  real  plaintiffs,  and  the  IMessrs.  Perkins  &  Co.,  who  caused  the 
attachment  to  be  made,  as  the  real  defendants. 

The  conveyance,  relied  on  by  the  plaintiff,  was  intended  as  a  pay- 
ment, to  the  amount  of  what  the  goods  should  produce ;  or  as  se- 
curity of  a  debt  due  from  Wain  to  Wilson  &  Co. 

But  it  is  objected  that  this  consideration  of  the  conveyance  does  not 
appear  in  the  instrument ;  that  there  was  no  discharge  of  the  debt ; 
no  receipt  for  the  goods,  with  an  obligation  to  account  for  the  pro- 
ceeds; and  no  writing  whatever,  showing  the  agreement,  which  is 
said  to  have  been  made  between  the  parties;  but  that  the  instrument 
purports  to  be  an  absolute  conveyance  by  Wain,  for  a  full  price  re- 
ceived, which  must  have  operated  as  a  fraud  upon  all  the  other  cred- 
itors of  Wain. 

These  objections  are  certainly  entitled  to  much  consideration;  but 
there  is  another  defect  in  the  plaintiff''s  title,  which  we  think  fatal,  and 
that  is  the  want  of  a  delivery  to  him,  in  pursuance  of  the  supposed 
conveyance. 

A  few  hours  after  this  conveyance  was  made  in  Philadelphia,  the 
defendant  attached  the  goods  in  Boston.  The  attaching  creditors  are 
to  be  considered  as  purchasers  for  a  valuable  consideration,  and,  in 
the  present  case,  as  purchasers  bona  fide,  and  without  notice  of  the 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  251 

prior  conveyance  to  the  plaintiff.  The  defendant  took  possession  un- 
der their  title ;    and  the  plaintiff  never  acquired  possession. 

The  general  rule  is  perfectly  well  established,  that  the  delivery  of 
possession  is  necessary  in  a  conveyance  of  personal  chattels,  as  against 
every  one  but  the  vendor.  When  the  same  goods  are  sold  to  two  dif- 
ferent persons,  by  conveyances  equally  valid,  he  who  first  lawfully 
acquires  the  possession,  will  hold  them  against  the  other.  This  prin- 
ciple is  recognized  in  the  case  of  Lamb  et  al.  v.  Durant,  12  Mass.  54, 
7  Am.  Dec.  31,  and  in  Caldwell  et  al.  v.  Ball,  1  D.  &  E.  205.  The  lat- 
ter indeed  was  a  case,  not  of  actual  delivery  of  goods  to  either  party, 
but  of  delivery  of  the  bill  of  lading.  There  were  two  bills  of  lading, 
signed  at  different  times  by  the  master  of  the  ship ;  and  the  party, 
who  first  obtained  one  of  them  by  a  legal  title  from  the  owner  of  the 
goods,  was  held  to  have  the  best  right,  although  the  bill  of  lading,  un- 
der which  he  claimed,  was  made  the  last.  The  endorsement  and  de- 
livery of  the  bill  of  lading,  in  such  a  case,  is  equivalent  to  the  actual 
delivery  of  the  goods. 

This  is  also  the  rule  of  the  civil  law.  When  the  same  thing  is  sold 
to  two  different  persons,  "Manifesti  juris  est,  cum,  cui  priori  traditum 
est,  in  detinendo  dominio  esse  potiorem."  Cod.  3,  32,  15.  So  Voet 
ad  Pand.  lib.  6,  tit.  1,  §  20,  "Ad  vindicationem  rei  duobus  separatim 
diverso  tempore  distractae,  non  is  cui  priori  vendita,  sed  cui  (pretio 
soluto,  vel  fide  de  eo  habita)  prius  est  tradita,  admittendus  est."  And 
Pothier,  in  the  place  cited  in  the  argument,  Vente,  No.  318,  320,  states 
the  same  principle ;  and  puts  the  case  of  a  sale  without  delivery,  and 
a  subsequent  attachment  by  the  creditors  of  the  vendor,  who,  he  says, 
would  hold  the  goods  against  such  a  purchaser. 

There  are,  indeed,  in  the  civil  law,  various  modes  of  taking  or  de- 
livering possession;  that  is,  dift'erent  acts,  which  are  equivalent  to 
actual  possession;  resembling,  in  our  law,  the  acknowledgment  and 
registry  of  a  deed  conveying  land;  receiving  the  keys  of  the  ware- 
house, in  which  goods  are  deposited;  and  the  case  before  mentioned 
of  receiving  the  bill  of  lading  of  goods  at  sea.  But  it  is  still  neces- 
sary to  every  conveyance  of  goods,  that  there  should  be  an  actual  or 
legal  delivery  of  them  to  the  vendee. 

Upon  these  principles,  it  is  obvious  that  the  defendant  must  pre- 
vail in  this  case;  unless  there  was  a  legal  delivery  to  the  plaintiff,  or 
something  equivalent  to  an  actual  delivery,  before  the  attachment  made 
by  the  defendant.  We  can  see  nothing  of  that  kind  in  the  evidence 
reported.  The  plaintiff  and  Wain,  it  is  true,  supposed  at  the  time  of 
their  negotiation,  that  the  goods  were  at  sea.  But  if  they  had  been  so, 
Wain  had  no  bill  of  lading,  and  no  other  document  or  evidence  of  his 
title,  to  deliver  to  the  plaintiff.  The  case,  therefore,  does  not  come 
within  the  rule  applicable  to  the  endorsement  and  delivery  of  a  bill 
of  lading;    nor  can  we  perceive  that  it  comes  within  any  other  ex- 


252  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER         (Ch.  2 

ception  to  the  general  rule,  which  requires  an  actual  delivery  to  the 
vendee. 

Suppose  that  these  goods  had  been  consigned  to  Wain  himself,  and 
that  the  bill  of  lading  had  come  to  his  hands  after  this  negotiation 
with  the  plaintiff.  If,  in  that  case,  a  third  person  had  purchased  the 
goods  of  \\'aln  for  a  valuable  consideration,  and  without  notice  of  any- 
prior  conveyance,  and  had  taken  the  bill  of  lading  endorsed  by  Wain, 
it  would  not,  we  think,  be  doubted  that  he  would  hold  the  goods 
against  the  plaintiff.  If  so,  it  shows  that  the  property  was  not  abso- 
lutely and  entirely  transferred  from  Wain  to  the  plaintiff.  It  might 
be  so,  as  between  themselves ;  but  not  with  regard  to  a  subsequent 
bona  fide  purchaser,  for  a  valuable  consideration ;  and  this  is  the  rela- 
tion in  which  the  defendant  now  stands. 

In  the  case  of  Lempriere  et  al.,  Assignees  of  Syeds,  a  Bankrupt,  v. 
Pasley,  2  D.  &  E.  485,  Syeds  before  his  bankruptcy  had  covenanted, 
for  a  valuable  consideration,  to  assign  and  deliver  to  the  defendant 
some  goods,  which  he  expected  on  board  a  certain  ship ;  and  he  also 
covenanted  that  he  would  endorse  and  deliver  to  the  defendant  the 
bill  of  lading,  as  soon  as  he  should  receive  it;  and  at  the  same  time 
he  did  deliver  the  policy  and  letters  of  advice  of  the  expected  ship- 
ment, which  were  all  the  documents  he  then  had.  After  he  became 
bankrupt,  the  bill  of  lading  arrived,  and  he  immediately  endorsed  it 
to  the  defendant,  who  thereupon  received  the  goods.  It  was  decided 
that  the  defendant  should  hold  them  against  the  assignees  of  the 
bankrupt,  on  the  ground  that  the  assignees  stood  in  the  place  of  the 
bankrupt,  and  took  his  property  subject  to  all  equitable  liens,  to  which 
it  was  subject  in  his  hands.  It  was  not  contended,  in  the  argument 
for  the  defendant,  that  there  was  a  complete  transfer  of  the  prop- 
erty, before  the  bankruptcy;  but  only  an  equitable  lien  or  interest  in 
the  defendant. 

A  commission  of  bankruptcy  has  been  sometimes  called  a  statute 
execution ;  but  the  assignees  have  not,  in  all  respects  under  the  com- 
mission, the  same  rights  as  a  creditor  by  execution,  or  in  our  law  an 
attaching  creditor.  Such  a  creditor,  as  before  observed,  is  to  be  con- 
sidered as  a  purchaser  for  a  valuable  consideration.  And  in  the  argu- 
ment for  the  defendant,  in  the  case  last  cited,  it  was  thought  material 
to  distinguish  between  the  rights  of  the  assignees,  and  those  which 
would  have  been  acquired  by  a  creditor  under  an  execution,  or  a  bona 
fide  purchaser  under  the  bill  of  lading;  it  being  admitted  that  the  latter 
persons,  if  they  had  first  got  possession,  without  notice  of  Pasley 's 
claim,  would  have  held  the  goods  against  him.  In  the  opinion  of  the 
Court,  also,  the  same  distinction  is  noticed ;  and  it  is  admitted  that 
such  a  purchaser,  having  obtained  possession,  would  hold  against  Pas- 
ley, although  the  assignees  could  not.  The  point  decided  in  that  case 
depended  on  the  English  bankrupt  laws,  and  therefore  does  not  af- 
fect the  question  now  before  us ;   but  the  course  of  reasoning,  and  the 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  253 

opinions  expressed  in  it,  tend  strongly  to  confirm  the  opinion  which 
we  have  adopted  in  the  present  case. 
Plaintiff  nonsuit.^^ 


INGALLS   V.   HERRICK. 

(Supreme  Judicial  Court  of  Massachusetts,  1S71.     lOS  Mass.  351,  11  Am.  Rep. 

360.) 

Tort  against  the  sheriff  of  Essex  for  the  conversion  of  twenty-one 
bales  of  flocks  of  wool,  attached  on  December  17,  1868,  by  a  deputy 
of  the  defendant,  as  property  of  William  H.  Lougee,  in  a  suit  against 
Lougee  by  one  of  his  creditors. 

At  the  trial  in  the  superior  court,  before  Lord,  J.,  the  plaintiff  in- 
troduced evidence  which  tended  to  show  that  on  December  16,  1868, 
he  bargained  with  Louis  H.  Bosworth,  Lougee's  duly  authorized 
agent,  for  a  purchase  of  the  flocks  at  an  agreed  price;  that  he  bought 
them  to  sell  again ;  that  the  bales  were  numbered  and  marked, 
weighed  7818  pounds,  were  of  about  the  ordinary  size  of  bales  of 
cotton,  and  were  stored  in  Lougee's  factory;  that  he  told  Bosworth  I 
that  he  had  no  place  of  his  own  to  store  them  in,  and  should  wish 
to  have  them  remain  for  a  while  where  they  were,  and  would  pay 
storage  on  them,  and  Bosworth  agreed  to  this ;  that  he  also  told  Bos- 
worth that  he  was  going  to  New  York  the  next  day,  and  must  have 
some  samples  of  the  flocks  to  take  with  him,  to  resell  them  by;  that 
on  the  evening  of  the  same  day,  at  Lougee's  counting-room  in  Law- 
rence, he  received  a  bill  of  parcels  of  the  flocks,  dated  that  day  and 
signed  by  Lougee,  specifying  the  numbers,  marks  and  weights  of 
the  bales,  and  acknowledging  receipt  of  the  agreed  price,  to  wit, 
$360.64  for  six  bales,  weighing  2254  pounds,  at  16  cents  per  pound, 
and  $612.04  for  fifteen  bales,  weighing  5564  pounds,  at  11  cents  per 
pound;  that  at  the  same  time  Bosworth  gave  him  parcels  of  the  two 
kinds  of  flocks ;  and  that  he  saw  the  flocks  in  the  store  room  at  the  fac- 
tory a  week  or  two  before  December  16,  but  did  not  see  them  on  that 
day,  nor  afterwards  until  they  had  been  attached  by  the  defendant's 
deputy. 

Bosworth  testified,  among  other  things,  "that  after  the  bargain  was 
made  he  went  to  the  factory  and  examined  the  bales  to  get  the  num- 
ber and  weight  of  each  bale,  and  wrote  the  bill  of  parcels  afterwards 
signed  by  Lougee,  and  delivered  it  to  the  plaintiff';  that  he  opened 
two  of  the  bales  and  took  out  small  quantities  of  the  flocks,  which  the 
plaintiff'  wanted  for  samples  to  sell  by,  and  then  sewed  up  the  bales  ; 
that  he  met  the  plaintiff"  during  the  afternoon,  and  told  him  that  the 
bill  and  the  samples  would  be  ready  for  him  that  evening,  at  Lougee's 

61  See  Meade  v.  Smith.  16  Conn.  .^46  (1844),  in  which  tlie  doctrine  of  Lan- 
fear  v.  Sumner  is  criticised  and  rejected. 


254  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch.  2 

counting-room ;  and  that  he  gave  these  flocks  to  the  plaintiff  at  the 
time  of  the  delivery  of  the  bill  of  sale." 

This  was  all  the  evidence  of  a  delivery;  and  the  judge  ruled  that 
it  would  not  authorize  the  jury  to  find  a  delivery  of  the  goods  as 
against  the  attaching  creditor  of  the  buyer,  and  directed  a  verdict 
for  the  defendants.     The  plaintiff  alleged  exceptions. 

Colt,  J.  It  was  ruled  as  matter  of  law,  in  this  case,  that  the  jury 
would  not  be  authorized  upon  this  evidence  to  find  a  delivery  of  the 
baled  flocks,  sufficient  to  pass  a  title  valid  as  against  creditors  of  the 
seller. 

There  was  evidence  tending  to  show  that  the  bargain  for  the  sale 
was  made  with  one  Bosworth,  an  agent  of  the  seller.  A  receipted 
bill  of  parcels,  signed  by  the  seller  himself,  which  contained  a  de- 
scription of  the  bales  by  number,  mark  and  weight,  was  afterwards 
delivered  by  the  agent  to  the  plaintiff.  The  subject  matter  of  the 
sale  was  all  the  baled  flocks  then  stored  in  the  seller's  factory.  It 
was  thus  a  completed  contract  of  sale,  and  as  between  the  parties 
the  title  passed  to  the  plaintiff.  Was  there  evidence  to  go  the  jury 
of  a  delivery  sufficient  as  to  creditors  ?  This  is  the  only  question,  and 
in  disposing  of  it  we  must  take  the  sale  to  have  been  made  in  good 
faith  and  for  a  valuable  consideration. 

Upon  this  question,  there  was  evidence  tending  to  shovv^  that  the 
flocks  were  bought  for  resale;  that  the  bales  were  large,  not  easily 
moved,  and  requiring  room  for  storage :  that  the  plaintiff,  having  no 
convenient  place,  agreed  with*  Bosworth,  at  the  time  of  the  bargain, 
to  let  them  remain  where' they  were,  and  pay  storage,  and  directed 
him  to  obtain  samples  of  the  flocks,  which  he,  the  plaintiff,  could  take 
with  him  to  New  York  to  sell  by;  and  that  Bosworth  accordingly 
opened  the  bales,  took  out  samples  of  two  kinds  of  flocks,  sewed  up 
the  bales,  and  gave  the  samples  to  the  plaintiff'  at  the  time  he  de- 
livered the  bill  of  parcels.  The  plaintiff  bought  upon  his  own  pre- 
vious knowledge  of  the  article,  having  seen  the  flocks  at  the  store- 
room of  the  factory  a  week  or  two  before.  The  samples  were  not 
required  or  used  by  him  in  reference  to  his  own  purchase,  and  Bos- 
worth, in  taking  them  from  the  bales,  acted  under  the  directions  and 
as  the  agent  of  the  plaintiff,  and  with  reference  to  future  sales  by 
him.  It  was  a  significant  act  of  ownership  and  possession  on  the 
part  of  the  plaintiff,  after  the  sale  was  agreed  on  through  Bosworth, 
acting  in  this  respect  as  his  agent.  There  is  something  more,  there- 
fore, here  disclosed,  than  a  mere  contract  of  sale  without  delivery 
or  possession  under  it.  And  we  are  of  opinion,  under  the  law  here- 
tofore laid  down  by  the  court,  that  the  case  should  have  been  sub- 
mitted, with  proper  instructions,  to  the  jury. 

It  was  early  held  that  the  possession  of  personal  chattels  by  the 
vendor  after  an  alleged  sale  is  not  conclusive  evidence  of  fraud. 
Upon  proof  that  the  sale  was  made  in  good  faith  and  for  a  valuable 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  255 

consideration,  and  that  the  possession  after  the  sale  was  in  pursuance 
of  some  agreement  not  inconsistent  with  honesty  in  the  transaction, 
the  vendee  might  hold  against  creditors.  Brooks  v.  Powers,  15  Mass. 
244,  8  Am.  Dec.  99.  It  was  declared  by  Morton,  J.,  in  Shurtleff  v. 
Willard,  19  Pick.  202,  211,  that,  whatever  the  rule  upon  this  point 
may  be  in  England  or  elsewhere,  it  is  perfectly  well  settled  in  a 
series  of  cases  here,  that  the  possession  of  the  vendor  is  only  evi- 
dence of  fraud,  which,  with  the  manner  of  the  occupation,  the  con- 
duct of  the  parties,  and  all  other  evidence  bearing  upon  the  question 
of  fraud,  is  for  the  consideration  of  the  jury.  It  is  certain  that 
slight  evidence  of  delivery  is  sufficient;  and  if  the  buyer  with  the 
consent  of  the  seller  obtains  possession  before  any  attachment  or 
second  sale,  the  transfer  is  complete  without  formal  delivery.  Shum- 
way  V.  Rutter,  8  Pick.  443,  19  Am.  Dec.  340.  A  delivery  of  a  por- 
tion in  token  of  the  whole  is  a  sufficient  constructive  delivery  as 
against  creditors,  although  the  goods  are  in  the  possession  of  various 
persons.  Legg  v.  Willard,  17  Pick.  140,  28  Am.  Dec.  282.  In  Hardy 
V.  Potter,  10  Gray,  89,  the  jury  were  told  that,  although  the  plaintiff 
only  took  a  bill  of  sale,  yet,  if  prior  to  the  attachment  he  had  been 
to  the  place  where  the  lumber  was,  and  had  exercised  acts  of  owner- 
ship over  it,  by  virtue  of  his  purchase,  that  would  constitute  a  de- 
livery of  it  good  against  a  subsequent  attachment.  And  this  in- 
struction was  held  not  open  to  exception,  although  the  evidence  was 
that  the  purchaser  had  only  been  to  Beverly  and  seen  the  lumber 
there.  See,  also,  Phelps  v.  Cutler,  4  Gray,  137;  Tuxworth  v.  Moore, 
9  Pick.  347,  20  Am.  Dec.  479 ;  Bullard  v.  Wait,  16  Gray,  55 ;  Ropes 
V.  Lane,  9  Allen,  502,  and  11  Allen,  591. 

The  fact  that  the  possession  of  the  property  is  retained  by  the 
vendor  by  agreement,  and  does  not  follow  the  bill  of  sale,  is  held 
by  this  court  to  be  in  most  of  the  cases,  evidence  of  fraud,  to  go  to  I 
the  jury.  In  many  of  the  states,  the  fraud  is  held  to  be  an  inference 
of  law  resulting  inevitably  from  the  possession.  And  such  was  sup- 
posed to  be  the  earlier  English  rule,  as  laid  down  in  Edwards  v. 
Harben,  2  T.  R.  587 ;  but  the  only  point  there  decided  was,  that  an 
absolute  conveyance  without  possession,  if  there  be  nothing  but  that, 
is  in  point  of  law  fraudulent.  In  the  more  recent  cases,  it  has  been 
declared  that  the  continued  possession  by  the  vendor,  of  goods  sold, 
is  a  fact  to  be  considered  by  the  jury,  as  evidence  of  fraud,  and  is 
not  in  law  a  fraud  in  itself.  Martindale  v.  Booth,  3  B.  &  Ad.  498. 
Benjamin  on  Sales,  363. 

There  was  evidence  here  of  delivery,  which  should  have  been  sub- 
mitted to  the  jury.    Exceptions  sustained. 


256  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Cll.  2 

McKIBBIN  V.  MARTIN. 
SAME  V.  KLINE. 

(Supreme  Court  of  Pennsylvania,  1870.    64  Pa.  352,  3  Am.  Rep.  588.) 

Before  Read,  Agnevv,  and  Sharswood,  JJ.,  Thompson,  C.  J.,  at 
Nisi  Prius. 

The  cases,  the  subject  of  these  writs  of  error,  were  two  feigned 
issues  under  the  Sheriffs'  Interpleader  Act,  in  both  of  which  Cham- 
bers McKibbin  was  claimant  and  plaintiff;  Thomas  J.  Martin  was 
the  defendant  in  one  issue  and  Charles  D.  Kline  in  the  other.  The 
issues  depended  on  the  same  facts  and  were  tried  together  January 
13th,  1869,  before  Hare,  P.  J. 

The  defendants  had  respectively  recovered  judgments  against  Jere- 
miah and  W.  C.  McKibbin,  who  composed  the  firm  of  J.  &  W.  C. 
AIcKibbin,  and  had  been  proprietors  and  conductors  of  the  Merchants' 
Hotel,  a  large  hotel  in  the  city  of  Philadelphia.  Executions  were  is- 
sued on  the  judgments,  in  September,  1868,  under  which  the  furniture, 
&c.,  in  the  hotel  were  levied  upon  as  their  property  and  claimed  by 
the  plaintiff.     The  issues  were  to  try  the  ownership  of  these  goods. 

The  plaintiff  gave  in  evidence  the  following  "Articles  of  agreement 
made  the  11th  day  of  June,  1868,  between  Jeremiah  McKibbin  and 
William  C.  McKibbin,  copartners  as  J.  &  W.  C.  IMcKibbin  of  the  one 
part  and  Chambers  IMcKibbin  of  the  other.  Whereas,  on  the  first 
day  of  February,  A.  D.  1865,  the  said  Chambers  McKibbin,  being  the 
owner  and  proprietor  at  the  time,  of  the  lease  and  good-will  of  the 
Merchants'  Hotel,  situated  on  the  west  side  of  Fourth  Street,  south 
of  Arch  street,  in  the  city  of  Philadelphia,  also  of  its  furniture  and 
fixtures  of  all  kinds,  &c.,  and  generally  of  all  its  arrangements  and  ap- 
purtenances of  every  nature  for  the  transaction  of  the  business  of 
hotel-keeping,  on  the  said  1st  February,  1865,  sold  the  same  to  the 
said  J.  &  W.  McKibbin,  for  the  sum  of  $30,000,  of  which  $5,000  were 
to  be  paid  in  20  days,  and  $5,000  in  each  of  five  other  payments,  re- 
spectively in  6,  12,  18,  24  and  30  months,  with  interest  for  deferred 
time,  from  February  1st,  1865,  for  each  of  which  payments  the  said 
J.  &  W.  McKibbin  gave  to  the  said  Chambers  McKibbin  their  prom- 
issory note ;  and  whereas  the  whole  of  said  purchase-money  remains 
due  and  unpaid,  the  parties  of  the  first  part  having  wholly  failed  to 
pay  any  of  said  notes  or  any  interest  thereon;  and  whereas  in  the 
event  of  default  in  their  payment,  it  was  agreed  that  upon  request  of 
said  Chambers  McKibbin,  said  premises  should  be  reconveyed : 

''Now,  therefore,  these  presents  testify  that  for  and  in  considera- 
tion of  the  surrender  and  cancellation  of  the  said  promissory  notes 
and  of  the  debt  they  represent,  &c.,  and  in  pursuance  of  the  afore- 
said agreement  and  understanding  at  the  time  of  the  original  purchase, 


Sec.  11)   RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER    257 

the  said  parties  of  the  first  part  have  sold,  &c.,  unto  the  said  party 
of  the  second  part,  the  lease  of  the  said  the  Merchants'  Hotel  prem- 
ises, together  with  the  good-will,  fixtures  and  appurtenances  of  the 
business  now  transacted  in  said  hotel,  and  all  and  singular  the  fur- 
niture, &c.,  and  generally  all  things  for  the  transaction  of  the  busi- 
ness of  hotel-keeping,  to  them  the  parties  of  the  first  part  belonging, 
and  now  to  said  premises  and  the  business  there  transacted  pertaining." 

Jeremiah  McKibbin,  a  son  of  Chambers  and  one  of  the  defendants 
in  the  executions,  testified  amongst  other  things :  "Upon  sale,  the 
property,  in  June,  1868,  passed  into  the  hands  of  my  father — the  prop- 
erty described  in  bill  of  sale.  The  'Press'  advertisement  of  dissolu- 
tion— also  in  'Age' — are  authorized  advertisements  of  the  change. 
From  11th  of  June,  1868,  C.  McKibbin  carried  on  the  business  of  the 
hotel.  Have  had  no  interest  in  business  since  sale.  Father  has  lived 
in  the  hotel  since  1865.  He  has  received  the  income,  paid  the  bills 
and  conducted  the  business  since  sale.  I  and  my  brother  remained 
as  before,  and  I  was  superintendent.  I  have  received  nothing  but 
compensation  for  services,  at  the  rate  of  $3,500  a  year,  but  there  was 
no  express  bargain.  Bills  of  hotel  were  made  out  in  name  of  C.  McKib- 
bin as  soon  as  could  be  printed.  Bills  are  made  out  every  day  more 
or  less.  The  sign  'Merchants'  Hotel'  in  front  of  hotel.  No  sign  put 
up  of  C.  McKibbin.  My  father  boarded  with  me  and  paid  no  board. 
My  mother  had  general  charge  of  house  and  no  board  was  charged. 
He  assumed  general  charge  of  business  as  soon  as  sale.  No  express 
contract  has  been  made  with  me.  He  directed  the  payment  of  bills 
and  business  generally.  He  has  since  sale  received  proceeds  of  hotel 
and  paid  money  out  when  necessary.  Journal  was  J.  &  W.  C.  Mc- 
Kibbin up  to  sale,  and  journal  of  C.  McKibbin  after  sale  in  same 
book.  I  do  not  reside  in  hotel.  The  hotel  deals  with  many  people — 
probably  200 — and  with  all,  bills  are  made  in  name  of  father  since 
sale.  Boarders  to  firm,  who  were  indebted,  had  to  pay  boarding  in  full 
to  C.  McKibbin." 

George  Jacoby  testified:  "I  was  bookkeeper  for  two  years,  to  mid- 
dle December  last.  We  were  ordered  on  16th  of  June  to  open  new 
set  of  books,  and  did  so  in  name  of  C.  McKibbin.  From  that  time 
he  conducted  the  business.  'Merchants'  Hotel"  is  the  only  sign  that 
was  on  the  hotel  for  two  years ;  was  no  sign  of  J.  &  W.  C.  McKibbin. 
Business  was  transacted,  bills  printed  and  receipted  and  rendered  in 
name  of  C.  McKibbin.  Several  were  rendered  in  name  of  old  firm 
and  were  sent  back  for  correction.  Cash-notes,  checks,  &c.,  were 
signed  by  C.  McKibbin." 

The  advertisements  referred  to  in  the  testimony  of  Jeremiah  Mc- 
Kibbin are  as  follows : 

"The  copartnership  heretofore  existing  between  the  subscriber  in 
the  business  of  conducting  the  Merchants'  Hotel  of  Philadelphia,  is 
Wood  w.  Sales — 17 


258     RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER    (Ch.  2 

dissolved,  they  having  disposed  of  their  interest  therein  to  Chambers 
McKibbin.  Jeremiah  ]McKibbin. 

"W.  C.  :\IcKibbin." 

"The  undersigned  has  again  become  owner  of  the  ']\Ierchants'  Ho- 
tel,' and  will  hereafter  conduct  and  continue  the  business.  He  invites 
a  continuance  of  its  former  patronage.  Chambers  IMcKibbin." 

The  court  submitted  the  question  of  good  faith  to  the  jury,  and 
reserved  the  following  point:  "Whether  under  all  the  evidence  there 
was  such  actual,  visible,  notorious  delivery  and  change  of  possession 
from  the  sons  to  the  father  of  the  furniture  as  would  be  valid  in  law 
against  the  creditor  of  the  vendor." 

The  jury  found  for  the  plaintiff.  The  court  afterwards  entered 
judgment  for  defendant  in  the  feigned  issue,  on  the  point  reserved. 

The  plaintiff  took  out  a  writ  of  error  in  each  case,  and  assigned  the 
entering  of  judgment  for  the  defendant  on  the  reserved  point,  for 
error. 

Sharswood,  J,  There  are  probably  no  more  difficult  and  embar- 
rassing questions  than  those  which  relate  to  the  respective  provinces 
of  the  court  and  of  the  jury  to  determine  what  is  law  and  what  is 
fact.  It  would  require  a  volume  to  consider  the  subject  in  all  its  bear- 
ings, and  deduce  accurate  and  intelligible  principles  from  the  great 
mass  of  the  decided  cases,  and  a  philosophical  treatise  on  this  impor- 
tant head  is  still  I  think  a  desideratum  of  our  legal  literature.  There 
are  undoubtedly  some  rules  clearly  established — these  are  plain  lines 
of  demarcation,  but  there  is  a  border  land  of  controversy  in  which 
the  opposing  principles  seem  to  be  in  continued  conflict,  the  victory 
sometimes  inclining  to  one  side  and  sometimes  to  the  other.  This  con- 
flict often  has  ended  in  a  reasonable  compromise  by  which  the  ques- 
tion has  become  what  is  termed  a  mixed  question  of  law  and  fact,  to 
be  submitted  to  the  decision  of  the  jury  under  proper  instructions 
from  the  court. 

One  of  the  questions  upon  which  difficulty  has  often  arisen  is  fraud 
in  the  sale  or  transfer  of  chattels  under  the  statute  of  13  Eliz.  c.  5, 
Roberts's  Dig.  295.  Such  fraud  may  be  either  actual  or  legal.  Ac- 
tual fraud  or  fraud  in  fact  consists  in  the  intention  to  prevent  cred- 
itors from  recovering  their  just  debts  by  an  act  which  withdraws  the 
property  of  a  debtor  from  their  reach.  Fraud  in  law  consists  in  acts 
which,  though  not  fraudulently  intended,  yet  as  their  tendency  is  to 
defraud  creditors  if  they  vest  the  property  of  the  debtor  in  his  gran- 
tee, are  void  for  legal  fraud,  which  is  deemed  tantamount  to  actual 
fraud,  full  evidence  of  fraud,  and  fraudulent  in  themselves,  the  pol- 
icy of  the  law  making  the  acts  illegal.  Baldwin,  J.,  in  Hanson  v. 
Eustace,  2  How.  688,  11  L.  Ed.  416.  Actual  fraud  is  always  a  ques- 
tion for  the  jury — legal  fraud,  where  the  facts  are  undisputed  or  are 
ascertained,  is  for  the  court.     Dornick  v.  Reichenback,  10  Serg.  &  R. 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  259 

90.  "As  remarked  by  an  eloquent  writer,"  says  Chief  Justice  Gib- 
son, "these  statutes  of  Elizabeth  produce  the  most  beneficial  effects 
by  placing  parties  under  a  disability  to  commit  fraud  in  requiring  for 
the  characteristics  of  an  honest  act  such  circumstances  as  none  but 
an  honest  intention  can  assume ;  and  they  seem  to  have  been  ex- 
pressed in  general  terms  purposely  to  leave  room  for  a  large  inter- 
pretation by  the  judges,  who,  in  accordance  with  the  spirit  rather  than 
the  words,  have  engrafted  on  them  such  artificial  presumptions  and 
legal  intendments  as  are  ordinarily  subjects  of  judicial  construction. 
In  fact  they  act  exclusively  by  presumptions,  not  always  inflexible  in- 
deed, but  sometimes  amounting  to  legal  conclusions."  Avery  v.  Street, 
6  Watts,  247. 

In  Twyne's  Case,  which  came  up  in  the  Star  Chamber  in  44  Eliz., 
and  is  reported  3  Rep.  80b,  Moore  638,  one  of  the  badges  of  fraud 
was  declared  to  be  that  "the  donor  continued  in  possession,  and  used 
the  goods  sold  or  given  as  his  own ;  and  by  reason  thereof  he  traded 
and  trafficked  with  others,  and  defrauded  and  deceived  them."  No 
distinction  was  attempted  between  actual  and  legal  fraud,  and  the 
tribunal  forbade  any  question  as  to  law  and  fact.  It  is  unnecessary 
to  trace  the  decisions  in  England.  Clow  v.  Woods,  5  Serg.  &  R.  275, 
9  Am.  Dec.  346,  decided  by  this  court  in  1819,  is  the  Magna  Charta 
of  our  law  upon  this  subject.  The  principles  settled  in  that  case  have 
been  recognized  and  affirmed  by  a  beadroll  of  subsequent  decisions, 
which  it  would  be  a  mere  affectation  of  learning  to  cite.  Without  ad- 
verting to  other  points,  it  established  that  retention  of  possession 
was  fraud  in  law  wherever  the  subject  of  the  transfer  was  capable  of 
delivery  and  no  honest  and  fair  reason  could  be  assigned  for  the  ven- 
dor not  giving  up  and  the  vendee  taking  possession.  Since  then  the 
courts  have  been  principally  occupied  in  determining  when  the  evi- 
dence of  change  of  possession  was  such  as  to  present  a  question  of  law 
for  the  court  or  of  fact  for  the  jury. 

No  point  as  to  actual  fraud  arises  on  this  record.  That  was  sub- 
mitted to  the  jury,  and  decided  by  them  in  favor  of  the  plaintiff.  The 
whole  question  of  legal  fraud,  however,  was  reserved  and  judgment 
entered  on  the  reservation  for  the  defendant.  If  there  was  evidence 
from  which  a  jury  would  have  been  justified  in  inferring,  under  in- 
structions from  the  court,  that  there  had  been  in  point  of  fact  an 
actual  and  exclusive  change  of  possession,  it  ought,  as  we  think,  to 
have  been  submitted  to  them. 

The  reserved  point  comprehends  two  questions,  which,  in  the  con- 
sideration of  the  case,  it  will  be  best  to  keep  distinct.  First :  was 
there  evidence  from  which  the  jury  would  be  permitted  to  find  such 
a  delivery,  actual  or  constructive,  as  the  law  requires  to  make  the  sale 
valid  as  against  creditors?  Second:  was  the  possession  taken  by  the 
vendee  exclusive  of  the  vendors  or  concurrent  with  them,  in  point  of 
law? 


260  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER         (Ch.  2 

/I.  Whenever  the  subject  of  the  sale  is  capable  of  an  actual  delivery, 
such  delivery  must  accompany  and  follow  the  sale  to  render  it  valid 
against  creditors.  The  court  is  the  tribunal  to  judge  whether  there 
is  sufficient  evidence  to  justify  the  inference  of  such  a  delivery.  If 
there  is  any  question  upon  the  evidence  as  to  the  facts,  or  resting 
upon  the  credibility  of  witnesses,  the  determination  of  that  must  be 
referred  of  course  to  the  jury.  But  if  not,  it  is  incumbent  upon  the 
court  to  decide  it,  either  by  a  judgment  of  nonsuit  or  a  binding  direc- 
tion in  the  charge.  Young  v.  J\IcClure,  2  Watts  &  S.  147;  ]\lcBride 
v.  McClelland,  6  Watts  &  S.  94 ;  Milne  v.  Henry,  40  Pa.  352 ;  De- 
wart  v.  Clement,  48  Pa.  413.  But  it  often  happens  that  the  subject 
of  the  sale  is  not  reasonably  capable  of  an  actual  delivery,  and  then  a 
constructive  delivery  will  be  sufficient.  As  in  the  case  of  a  vessel  at 
sea,  of  goods  in  a  warehouse,  of  a  kiln  of  bricks,  of  a  pile  of  squared 
timber  in  the  woods,  of  goods  in  the  possession  of  a  factor  or  bailee, 
of  a  raft  of  lumber,  of  articles  in  the  process  of  manufacture,  where 
it  would  be  not  indeed  impossible,  but  injurious  and  unusual  to  remove 
the  property  from  where  it  happens  to  be  at  the  time  of  the  transfer. 
Clow  V.  Woods,  5  Serg.  &  R.  275,  9  Am.  Dec.  346 ;  Cadbury  v.  Xolen, 
5  Pa.  320;  Linton  v.  Butz,  7  Pa.  89,  47  Am.  Dec.  501;  Haynes  v. 
Hunsicker,  26  Pa.  58;  Chase  v.  Ralston,  30  Pa.  539;  Barr  v.  Reitz, 
53  Pa.  256;    Benford  v.  Schell,  55  Pa.  393. 

In  such  cases  it  is  only  necessary  that  the  vendee  should  assume  the 
control  of  the  subject  so  as  reasonably  to  indicate  to  all  concerned  the 
fact  of  the  change  of  ownership.  Where  nothing  of  the  kind  has  tak- 
en place,  it  is  the  duty  of  the  court  to  pronounce  a  mere  symbolical 
delivery  to  be  insufficient ;  but  where  there  is  evidence  of  such  assump- 
tion of  control,  it  is  for  the  jury  to  say  whether  it  was  bona  fide  or 
merely  colorable,  and  whether  it  was  enough  to  give  notice  to  the 
world.  The  question  in  such  case  is,  did  the  vendee  do  all  that  he 
might  reasonably  be  expected  to  do  in  the  case  of  a  real  and  honest 
sale?  In  Barr  v.  Reitz,  53  Pa.  256,  the  rule  was  clearly  expressed  in 
the  opinion  of  the  court  by  Mr.  Justice  Agnew.  "In  considering  the 
question  what  is  an  actual  delivery,  the  nature  of  the  property  and 
circumstances  attending  the  sale  must  be  taken  into  the  account.  We 
are  not,  in  carrying  out  a  mere  rule  of  policy,  to  confound  all  dis- 
tinctions between  that  which  is  capable  of  easy  delivery  and  that  which 
is  not.  Squared  timber  lying  in  the  woods,  or  piles  of  boards  in  a 
yard,  are  incapable  of  the  same  treatment  as  a  piece  of  a  cloth,  or  a 
horse.  So  there  are  many  cases  which  allow  the  force  of  those  cir- 
cumstances, which  take  away  any  false  color  or  appearance  of  owner- 
ship remaining  in  the  seller."  Then,  after  citing  a  number  of  deci- 
sions, it  is  added:  "But  without  affirming  these  doctrines  to  the  ex- 
tent these  cases  might  seem  to  warrant,  it  is  sufficient  to  say  they  are 
illustrations  of  the  principle  we  have  stated  that  the  circumstances 
may  prevent  the  court  from  pronouncing  it  a  fraud,  per  se,  and  carry 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  2G1 

the  case  to  the  jury  on  the  facts  with  proper  instruction  from  the  court 
on  the  law,  if  the  jury  find  the  delivery  of  possession  merely  formal 
or  constructive." 

The  distinction  founded  upon  the  principle  here  stated  between  a 
question  of  law  and  one  of  fact,  may  be  illustrated  by  a  familiar  ex- 
ample. Upon  the  sale  of  a  single  board,  or  of  a  cartload  of  boards, 
it  would  not  do  to  set  up  a  constructive  delivery  by  marking,  and  let- 
ting it  remain  where  it  was  until  it  was  convenient  to  remove  it.  The 
court  would  be  bound  to  hold  as  matter  of  law,  that  such  articles  were 
capable  of  actual  delivery.  But  it  would  be  different  with  a  board- 
yard,  filled  with  many  piles  of  lumber.  There  the  circumstances  are 
such  as  to  render  an  actual  delivery  and  removal  impracticable,  or  at 
least  injurious  and  expensive.  The  vendee  must  assume  the  control, 
and  do  all  that  an  honest  man  would  reasonably  be  expected  to  do  to 
advertise  the  public  of  the  sale. 

This  seems  to  be  just  the  difference  between  the  case  of  Steelwagon 
V.  Jeffries,  44  Pa.  407,  upon  which  the  court  below  relied,  and  the 
evidence  as  it  appears  on  this  record.  That  was  the  sale  of  the  fur- 
niture of  a  dwelling-house.  Nothing  is  easier  than  to  remove  it  to 
another  house,  or  if  that  be  not  necessary,  for  the  vendor  to  leave  the 
house  and  the  vendee  to  take  possession  with  all  the  ordinary  indicia 
of  ownership.  That  is  the  ground  upon  which  the  present  Chief  Jus- 
tice placed  that  determination.  "Why,"  says  he,  "is  not  the  transfer 
of  household  property  to  be  actual  and  exclusive  like  that  of  any 
other  personal  property?  It  is  as  capable  of  manual  occupancy  and 
removal  as  almost  any  other  kind.  If  the  sale  be  actual  it  usually 
is  removed ;  if  it  be  only  for  the  purpose  of  securing  it  against  cred- 
itors, why  shall  it  not  stand  on  the  same  platform  with  other  property,  ■ 
capable  of  delivery  and  change  of  possession?"  But  the  circum- 
stances of  a  large  establishment  like  the  "Merchants'  Hotel"  are  en- 
tirely different.  Here  are  many  hundred  lodging  rooms,  parlours  and 
sitting-rooms,  besides  the  culinary  department  with  its  necessary  of- 
fices, all  fully  furnished.  To  what  other  building  can  the  vendee  re- 
move them,  or  least  without  great  deterioration  and  expense?  They 
are  valuable  mainly  for  the  purpose  for  which  they  are  used  and  in 
the  place  where  they  are  situated.  It  is  enough  that  the  vendee  as- 
sume the  direction  and  control  of  them,  and  in  such  an  open,  notori- 
ous manner  as  usually  accompanies  an  honest  transaction.  Whether 
all  was  done  that  ought  to  have  been  done  in  this  instance,  and  wheth- 
er the  change  of  possession  was  real  and  bona  fide — not  merely  color- 
able and  deceptive — leaving  the  actual  possession  and  control  in  the 
vendors,  were  questions  of  fact  which  ought  to  have  been  submitted 
to  the  jury. 

2.  But  the  law  undoubtedly  is,  that  not  only  must  possession  bel 
taken  by  the  vendee,  but  that  possession  must  be  exclusive  of  the  ven-| 
dor.     A  concurrent  possession  will  not  do.     "There  cannot  in  such 


262  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch.  2 

case,"  said  Mr.  Justice  Duncan,  "be  a  concurrent  possession;  it  must 
be  exclusive,  or  it  would  by  the  policy  of  the  law  be  deemed  color- 
able." Clow  V.  Woods,  5  Serg.  &  R.  287,  9  Am.  Dec.  346.  And 
again,  in  Babb  v.  Clemson,  10  Serg.  &  R.  428,  13  Am.  Dec.  684; 
"There  cannot  be  a  concurrent  possession  in  the  assignor  and  as- 
signees; it  must  be  exclusive,  or  it  is  deemed  colorable  and  fraudu- 
Jlent.  To  defeat  the  execution,  there  must  have  been  a  bona  fide  sub- 
Istantial  change  of  possession.  It  is  mere  mockery  to  put  in  another 
'person  to  keep  possession  jointly  with  the  former  owner.  A  concur- 
rent possession  with  the  assignor  is  colorable."  But  what  is  the  con- 
current possession  which  will  be  deemed  such  as  matter  of  law  ?  Evi- 
dently as  owner,  or  accompanied  with  the  ordinary  indicia  of  owner- 
ship— such  as  will  lead  any  person  not  in  the  secret  to  infer  that  there 
has  been  no  actual  change.  The  vendor  must  appear  to  occupy  the 
same  relation  to  the  property  as  he  did  before.  In  such  a  case  the 
court  must  pronounce  it  fraudulent  and  colorable  per  se.  We  have 
been  referred  to  three  cases  only  in  our  books  which  were  determined 
on  this  ground.  These  were  all  of  the  character  I  have  stated.  Hoff- 
ner  v.  Clark,  5  Whart.  545;  Brawn  v.  Keller,  43  Pa.  104,  82  Am. 
Dec.  554;  Steelwagon  v.  Jeffries,  44  Pa.  407.  Certainly  it  may  be 
considered  as  settled  by  abundant  authority  in  this  court  that  where 
there  has  been  a  sufficient  actual  or  constructive  dehvery  to  the  vendee, 
and  he  is  in  possession,  the  fact  that  the  vendor  is  employed  as  a  clerk 
or  a  servant  about  the  establishment,  in  a  capacity  which  holds  out  no 
indicium  of  ownership,  does  not  constitute  such  a  concurrent  posses- 
sion as  the  law  condemns.  In  such  cases  it  is  a  question  for  the  jury 
whether  the  change  of  possession  has  been  actual  and  bona  fide — not 
pretended,  deceptive  and  collusive.  If  there  are  facts  tending  to  show 
that  he  had  a  beneficial  interest  in  the  business ;  that  the  proceeds  of 
it  went  to  him  beyond  a  reasonable  compensation  for  his  services ; 
that  he  had  an  unlimited  power  to  draw  upon  the  till;  or  that  with 
the  knowledge  of  the  vendee  he  took  money  to  pay  his  own  debts — 
these  are  facts  for  the  jury. 

I  will  refer  to  a  few  of  the  cases  which  sustain  this  view.  Thus  in 
jMcVicker  v.  May,  3  Pa.  224,  45  Am.  Dec.  637,  a  sale  by  a  father  to 
a  son;  when  the  son  had  removed  to  another  tavern-stand  the  father 
continued  to  live  with  him,  and  was  employed  about  the  house  as  a 
servant.  "When  the  son  opened  the  new  tavern,"  say  the  court,  "his 
mother  and  sister  kept  house  for  him,  and  his  father  did  jobs;  but 
the  son's  possession  and  use  of  the  goods  were  exclusive.  But  if  mere 
cohabitation  were  a  badge  of  fraud,  a  father's  sale  to  his  unmarried 
son  would  seldom  be  sustained.  It  certainly  w^as  not  ■  necessary  for 
the  son  to  turn  his  father  out  of  doors."  Forsyth  v.  Matthews,  14 
Pa.  100,  53  Am.  Dec.  522,  as  explained  by  Mr.  Justice  Lowrie,  before 
whom  the  case  had  been  tried  below.  Dunlap  v.  Bournonville,  26  Pa. 
74,  was  a  sale  by  a  son  to  his  father,  and  though  the  business  continued 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  263 

to  be  conducted  in  the  same  place  and  with  the  assistance  of  the  son, 
yet  there  being  evidence  of  an  actual  transfer  of  the  possession  and 
control  of  the  property,  the  sale  was  sustained.  Childs  v.  Simmons, 
an  unreported  case,  cited  26  Pa.  74;  the  transfer  was  by  a  storekeeper 
to  his  clerk,  the  vendor  continued  to  aid  in  the  store,  but  the  sign  was 
changed,  and  the  sale  was  upheld.  Hugus  v.  Robinson,  12  Harris,  9. 
The  subject  was  a  drugstore.  The  vendee  bought  it  for  his  son,  who 
had  been  a  clerk  and  apprentice  of  the  vendor,  and  put  him  in  pos- 
session. The  vendor  attended  the  store  very  much  as  before,  and! 
the  signs  were  not  changed.  It  was  left  as  a  question  of  fact,  to  the] 
jury,  and  the  judgment  was  affirmed.  In  Dunlap  v.  Bournonville,  26 
Pa.  12,  two  brothers  transferred  a  coachmaker's  establishment  to  a 
third,  and  the  vendors  remained  in  the  capacity  of  foremen.  It  was 
held  that  it  ought  to  have  been  submitted  to  the  jury.  Chief  Jus- 
tice Thompson  has  said  that  this  case  stands  on  the  very  outer  verge 
of  settled  principles,  but  on  its  facts  is  still  within  them :  44  Pa.  412. 
In  Billingsley  v.  White,  59  Pa.  464,  two  partners  sold  out  a  store 
of  goods  to  the  brother  of  one  of  them.  One  of  the  vendors  con- 
tinued in  the  store  as  a  hired  hand.  "If,"  said  Mr.  Justice  Williams, 
"Billingsley's  acts  and  declarations  as  a  salesman  had  been  such  as 
to  leave  it  doubtful  whether  he  was  acting  as  owner  or  agent,  then 
his  presence  and  connection  with  the  goods  would  have  been  such  evi- 
dence of  retained  possession  as  to  render  the  sale  fraudulent.  But 
if  his  acts  and  declarations  were  professedly  and  apparently  those  of 
a  mere  agent,  and  were  so  understood  by  the  parties  with  whom  he 
dealt,  as  all  the  evidence  tends  to  show,  then  they  constituted  no  such 
badge  of  fraud  or  evidence  of  retained  possession  as  would  justify 
the  court  in  declaring  the  sale  fraudulent." 

I  frankly  confess  that  I  have  not  regarded  this  line  of  decisions  with 
favor.  Dunlap  v.  Bournonville  was  tried  before  me  in  the  District 
Court,  and  I  entered  the  judgment  of  nonsuit,  which  was  there  re- 
versed. I  dissented  from  the  determination  in  Billingsley  v.  White, 
because  I  was  afraid  that  it  went  a  step  further  than  any  of  the  pre- 
ceding cases  in  recognizing  the  right  of  the  vendee  to  employ  the  ven- 
dor as  his  agent  to  conduct  the  business.  Perhaps  it  does  not  go  that 
far.  But  I  have  been  too  long  on  the  bench — now  nearly  twenty-five 
years — not  to  have  learned  this  lesson,  that  a  judge  has  no  right  to 
adhere  to  his  own  favorite  opinions,  after  they  have  been  reversed  or 
overruled.  It  is  his  duty  to  administer  justice  according  to  the  law  as 
it  is  settled — not  according  to  his  own  notions  of  what  it  ought  to  be. 
"Neminem  oportet  esse  sapientiorem  legibus;"  no  man  out  of  his  own 
private  reason  ought  to  be  wiser  than  the  law,  which  is  the  perfection 
of  reason,  says  Lord  Coke :  1  Inst.  97,  b. 

Judgment  reversed,  and  venire  facias  de  novo  awarded. 


264  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch.  2 

STIMSON  et  al.  v.  WRIGLEY. 
(Court  of  Appeals  of  New  York,   1881.     86  N.  Y.  332.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  Third  Judicial  Department,  entered  upon  an  order  made  April 
8,  1880,  which  affirmed  a  judgment  in  favor  of  defendant  entered 
upon  a  decision  of  the  court  on  trial  at  Special  Term. 

This  action  was  brought  to  restrain  the  defendant  from  selling,  as 
'constable  of  the  city  of  Cohoes,  certain  machinery  levied  upon  by 
him,  under  and  by  virtue  of  certain  tax  and  assessment  warrants 
issued  to  him  by  the  chamberlain  of  said  city. 

The  property  in  question  originally  belonged  to  the  Clifton  Com- 
pany, a  manufacturing  corporation,  against  which  corporation  taxes 
were  assessed  as  appeared  by  the  rolls  attached  to  said  warrants. 
The  warrants  were  issued  to  the  chamberlain,  one  in  August,  one  in 
December,  1875,  and  one  in  February,  1876.  They  were  placed  in 
the  hands  of  defendant  for  collection  between  the  10th  and  20th  days 
of  May,  1876.  On  the  22d  day  of  December,  1875,  the  property  in 
question  was  sold  by  the  sheriff  under  and  by  virtue  of  executions 
issued  to  him  upon  judgments  rendered  in  favor  of  the  plaintiffs 
against  said  corporation,  and  was  bid  in  by  the  plaintiffs. 

The  court  found  that  the  sale  "was  not  accompanied  by  an  imme- 
diate or  other  delivery,  nor  was  it  followed  by  any  actual  or  other 
change  of  possession  at  least  until  after  February  24,  1876,  and  after 
the  issue  of  the  warrants  to  the  chamberlain,  *  *  *  and  that  no 
proof  has  been  given,  showing  that  said  sale  was  made  in  good  faith, 
and  without  any  intent  to  defraud  the  creditors  of  the  said  Clifton 
Company;"  and,  as  conclusions  of  law,  that  the  sale  to  the  plaintiff 
was  fraudulent  and  void  as  against  the  creditors  of  said  corporation, 
and  that  the  city  of  Cohoes  was  a  creditor  within  the  meaning  of  the 
statute  of  frauds. 

Further  facts  appear  in  the  opinion. 

Finch,  J.  It  is  found  as  a  fact,  upon  evidence  which  is,  at  least, 
sufficient  on  appeal,  that  the  sale  to  the  plaintiffs  was  not  accompanied 
by  an  immediate  or  other  delivery  of  the  property  sold,  nor  followed 
by  any  actual  or  continued  change  in  possession,  until  after  the  issue 
of  the  tax  warrants  of  the  city  of  Cohoes  to  its  chamberlain.  If  there- 
fore the  provisions  of  the  statute  of  frauds  apply  (3  R.  S.  [5th  Ed.] 
222,  §§  5  and  6),  and  the  city  at  the  issue  of  the  tax  warrants  to  the 
Ichamberlain  was  a  creditor  of  the  corporation  within  the  meaning  of 
[the  statute,  the  presumption  of  fraud  arose  which  was  found  as  a 
legal  conclusion  by  the  trial  court,  and  sustained  by  the  General  Term. 
That  the  statute  applies  to  a  sale  on  execution  as  against  the  pur- 
chaser, and  whether  that  purchaser  be  the  plaintiff  in  the  execution, 
or  a  third  person,  was  early  decided.  Fonda  v.  Gross,  15  Wend.  628; 
Gardenier  v.  Tubbs,  21  Wend.  169. 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  265 

The  reason  of  the  rule  and  the  evil  at  which  it  was  aimed  justify 
these  decisions.  To  permit  a  continued  possession  in  the  vendor  en-j  j 
courages  transfers  of  mere  title  to  defeat  creditors,  while  the  debtor's 
beneficial  use  of  the  property  leaves  him  practically  the  owner,  andjj 
tends  to  give  him  a  credit  to  which  he  is  not  entitled.  As  an  honest 
purchaser  buys  because  he  wants  the  property  and  its  possession,  and 
therefore  naturally  and  usually  takes  it,  the  absence  of  this  fact  indi- 
cates some  purpose  different  from  that  of  an  honest  purchaser  and 
requires  proof  of  good  faith  and  honest  intention.  These  considera- 
tions apply  equally  to  cases  where  the  transfer  of  title  from  the  ven- 
dor is  through  the  agency  of  a  judgment  and  execution  followed  by 
a  sheriff's  sale.  In  this  case  the  judgment  creditors  were  also  pur- 
chasers. A  delivery  and  change  of  possession  upon  the  sale  was 
possible  by  the  act  of  the  judgment  debtor  and  the  vendee.  The  case 
is  not  like  that  of  Alumper  v.  Rushmore,  79  N.  Y.  19,  to  which  we 
are  referred.  There  neither  vendor  nor  vendee  possessed  or  con- 
trolled the  property  at  the  time  of  the  assignment.  The  possession 
of  the  sherifif  under  a  hostile  levy  made  delivery  and  change  of  pos- 
session impossible  to  assignor  and  assignee,  and  so  relieved  them  of 
the  duty  and  adequately  excused  its  non-performance. 

The  argument  of  the  appellant  is  not  aimed  at  a  contradiction  of 
these  views,  but  seeks  to  establish  that  there  was  a  change  of  pos- 
session in  fact,  and  if  not,  that  enough  was  shown  to  repel  the  pre- 
sumption of  fraud.  The  question  of  fact  is  not  without  difficulty. 
There  was  some  contradiction  in  the  testimony,  or  at  least  in  the  in- 
ferences to  which  it  led,  and  where  that  is  the  case,  the  conclusions 
of  the  trial  court  upon  the  facts  are  not  open  to  our  review.  The 
circumstances  of  the  case  however  impress  us  with  the  idea  that  there 
was  merely  a  change  of  title  of  the  machinery  from  the  failing  corpo- 
ration to  certain  of  its  individual  members,  or  their  relatives,  brought 
about  by  judgments  obtained  on  default,  without  any  change  whatever 
of  the  possession  of  the  property,  at  least  until  February,  1876,  when 
S.  Edward  Stimson  became  lessee.  Prior  to  that  time  nothing  ap- 
pears to  have  been  done  which  owed  its  origin  to  the  change  of  title, 
and  nothing  afterward,  outside  of  the  formal  lease.  The  case  was 
therefore  one  which  demanded  explanation  and  evidence  of  good 
faith,  or  certainly  justified  the  inference  of  the  Special  Term  from 
which  such  need  of  explanation  follows. 

It  is  argued  that  the  judgments  prove  good  faith-.  That  they  are 
conclusive  between  the  parties  is  true,  but  third  persons  may  assail 
them  for  fraud  in  proper  cases ;  and  the  statute,  with  its  presump- 
tions founded  upon  non-delivery  and  absence  of  changed  possession, 
draws  no  distinction  between  modes  of  transfer.  In  a  case  like  the 
present  it  is  the  judgment,  execution  and  sale  by  the  sheriff  which 
constitutes  together  the  conveyance  by  which  title  is  transferred;  and 
to  say  that  such  transfer  because  of  its  form  and  character,  proves 


266  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch.  2 

good  faith  as  against  an  assailing  creditor,  is  to  except  from  the  opera- 
tion of  the  statute  one  mode  of  conveyance,  although  the  rule  relates 
equally  to  all  and  makes  no  exceptions.  The  cases  cited  by  the  ap- 
pellant on  this  point  (Candee  v.  Lord,  2  N.  Y.  269,  51  Am.  Dec. 
294,  and  Hall  v.  Stryker,  27  N.  Y.  596)  in  no  respect  contravene  this 
doctrine. 

It  is  said  that  the  immediate  removal  of  the  property  sold  was  ex- 
cused because  it  was  heavy  machinery  screwed  to  the  floor  of  the  mill 
and  not  easily  handled. 

Undoubtedly  the  bulky  and  cumbersome  character  of  articles  sold 
affects  the  nature  of  acts  of  delivery  and  taking  possession.  But  some 
act,  definite  and  distinct,  is  always  required.  Actual  removal  from 
the  mill  might  not  have  been  necessary,  but  something  tantamount  to 
an  actual  delivery,  some  plain  surrender  of  possession  on  the  one  hand 
and  assumption  of  it  on  the  other,  is  necessary,  and  the  finding  of  the 
Special  Term  negatives  the  existence  of  any  such  fact. 

It  follows  that  the  presumption  of  fraud  attached  to  this  transfer 
as  against  the  claim  for  taxes  of  the  city  of  Cohoes,  if  the  latter 
was  a  creditor  as  defined  in  section  6  of  the  statute.  That  the  city 
was  a  creditor  when  the  tax  warrants  were  delivered  to  the  chamber- 
lain scarcely  admits  of  doubt.  The  taxes  at  that  date  were  fixed  and 
ascertained  and  due  in  specific  amounts  from  the  corporation  to  the 
city.  All  the  tax  warrants  were  delivered  to  the  chamberlain  before 
the  plaintiff's'  title  accrued  by  the  sheriff's  sale,  except  that  for  the 
Mohawk  street  sewer,  which  reached  the  chamberlain  after  the  sale, 
but  before  the  24th  of  February,  1876,  when  the  premises  were  leased 
to  S.  Edward  Stimson. 

The  statute  defines  what  creditors  are  within  the  protection  of  the 
act.  They  are  "all  persons  who  shall  be  creditors  of  the  vendor  or 
assignor  at  any  time  whilst  such  goods  and  chattels  shall  remain  in  his 
possession,  or  under  his  control."  The  city  of  Cohoes  was  such  cred- 
itor during  the  whole  period  subsequent  to  the  sale,  and  was  within 
the  protection  of  the  act.  Assuming  that  the  lease  to  S.  Edward 
Stimson,  made  after  the  issue  of  the  tax  warrants  to  the  chamberlain, 
and  the  acts  done  under  it,  amounted  to  a  delivery  and  change  ot  pos- 
session within  the  meaning  of  the  statute,  which  we  do  not  decide,  the 
question  is  still  left  whether  such  after-delivery  destroys  the  effect  of 
the  previous  omission,  and  validates  the  sale  as  against  the  process  is- 
sued later  to  the  constable.  Certainly  such  after-delivery  does  not  ex- 
plain or  excuse  the  previous  omission.  That  still  remains  as  a  fact 
from  which  the  inference  of  fraud  arises. 

The  language  of  the  statute,  so  far  from  permitting  or  excusing 
such  after-delivery,  seems  expressly  framed  to  forbid  it  any  effect  as 
against  previously  existing  creditors.  It  requires  the  sale  to  be  "ac- 
companied" by  an  "immediate"  delivery.  Against  one  postponed  it 
aims  the  presumption  of  fraud.     The  delay,  the  omission,  whether 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  267 

brief  or  long,  is  the  very  thing  which  raises  the  presumption.  Nor 
does  it  matter  that  the  creditor  is  not  armed  with  process  and  a  specific 
Hen  until  after  the  delivery.  Before  that  he  is  a  creditor,  entitled 
to  the  benefit  of  the  statute,  which  gives  him  that  benefit  as  such, 
and  without  reference  to  his  process.  While  he  cannot  utilize  the 
benefit  without  the  aid  of  process  and  a  specific  lien,  yet  when  he 
comes  with  it  in  his  hand,  he  may  avail  himself  of  the  presumption 
which  the  statute  gives  him  as  a  creditor  while  the  goods  sold  re- 
mained in  the  vendor's  possession.  The  opinions  of  Judge  Learned 
at  Special  Term  and  in  Dutcher  v.  Swartwood,  15  Hun,  34,  on  this 
point  are  well  and  accurately  reasoned  and  meet  our  approval. 

A  further  point  was  urged  on  the  argument  that  the  tax  warrants 
were  issued  illegally  and  without  authority.  But  the  plaintiffs  in  their 
complaint  expressly  waived  such  objection.  The  defendant  had  the 
right  to  rely  upon  that  waiver,  and  must  be  presumed  to  have  tried 
his  case  on  such  reliance.  He  could  not  be  expected  to  prepare  for 
an  issue  which  was  withdrawn  from  the  case  by  the  pleadings. 

These  views  render  unnecessary  a  consideration  of  the  further 
questions  whether  the  remedy  by  injunction  was  applicable. 

The  judgment  should  be  affirmed,  with  costs.    All  concur. 

Judgment  affirmed. °^ 


TILSON  v.  TERWILLIGER  et  al. 

(Court  of  Appeals  of  New  York,  1S74.     56  N.  Y.  27.3.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  Third  Judicial  Department,  affirming  a  judgment  in  favor  of 
plaintiff  entered  upon  a  verdict. 

This  was  an  action  to  recover  damages  for  the  alleged  conversion  of 
a  mare  alleged  to  have  been  purchased  by  plaintiff  of  one  Isaac  J. 
Craig. 

Defendants  justified  under  a  judgment  and  execution  in  favor  of 
defendant  Atkins,  which  execution  was  placed  in  the  hands  of  de- 
fendant Terwilliger,  as  constable,  who,  by  virtue  thereof,  levied  on 
the  mare  then  in  the  actual  possession  of  Craig. 

Plaintiff  testified  that  he  bought  the  mare  of  Craig  in  1865,  paying 
full  consideration  therefor ;  that  she  was  delivered  to  him,  and  that 
he  had  actual  possession  for  about  a  year ;   that  she  was  kept  for  him 

62  In  Myers  v.  Harvey,  2  Pen.  &  W.  (Pa.)  478,  23  Am.  Dec.  60  (1S31),  Gibson, 
C.  J.  saTcl:  "Retention  of  possession  by  the  former  owner  of  a  chattel  sold 
at  sheriff's  sale  is  not  an  index  of  fraud,  because  the  sale  is  not  the  act  of 
the  person  retaining:,  but  of  the  law,  and  because  a  judicial  sale,  being  con- 
ducted by  the  sworn  officer  of  the  court,  shall  be  deemed  fair,  till  it  is  proved 
to  be  otherwise."  And  in  Lothrop  v.  Wightman,  41  Pa.  297  (1S61),  Wood- 
ward, J.,  said  that  "the  judicial  sale  was  legal  notice  to  all  the  world  of  the 
change  of  property,  and  needed  no  correspondent  change  of  possession  and 
of  the  indicia  of  ownership  to  complete  its  effect." 


268  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER         (Ch.  2 

by  a  third  person  for  above  a  year,  and  that,  in  1867,  he  returned  her 
again  to  the  possession  of  Craig,  as  he  testified,  to  be  kept  for  him. 

Upon  the  trial  defendants  made  various  offers  to  prove  declarations 
of  Craig,  after  the  mare  was  returned  to  his  possession,  as  to  his  title, 
and  as  to  his  intent  in  disposing  of  her.  These  were  excluded  under 
objection,  and  defendants  excepted.  Defendants  asked  to  go  to  the 
jury  on  the  question  of  fraud,  but  the  court  declined  to  submit  any 
question  to  the  jury,  save  that  of  damages,  to  which  defendants  ex- 
cepted. 

FoLGKR,  J.®^  There  was  not  a  continued  change  of  possession  of 
the  thing  sold.  It  was  found  after  the  sale,  with  no  intermediate 
change  of  title,  in  the  possession  of  the  vendor,  by  the  act  of  the 
vendee. 

It  is  true,  the  sale  was  accompanied  by  immediate  delivery  to  the 
vendee,  and  an  actual  change  of  possession ;  and  much  time  then 
/  passed  before  the  chattel  came  again  into  the  possession  of  the  ven- 
dor. This  matters  not,  save  as  a  circumstance  to  be  considered  by 
the  jury,  on  the  issue  of  good  faith  and  absence  of  intent  to  defraud. 
The  change  of  possession  into  the  vendee  did  not  continue.  With  no 
other  title  in  the  meantime  claimed  to  it  than  that  of  the  vendee,  it 
had  come  with  his  knowledge  and  assent  into  the  open  and  notorious 
control  and  possession  of  the  vendor.  The  law  will  not  measure  the 
lapse  of  time  from  the  sale  and  delivery,  to  this  renewed  possession 
by  the  vendor  directly  from  his  vendee,  and  say  that  a  change  of  pos- 
session continued  for  this  longer  period,  will  satisfy  the  statute;  but 
for  that  shorter  period  will.  not.  The  statute  is  imperative  that  the 
sale  must  be  followed  by  a  continued  change  of  possession,  or  it  shall 
be  presumed  to  be  fraudulent.  It  is  then  upon  the  vendee  to  make  it 
appear  that  the  transaction  was  in  good  faith,  and  with  no  intent  to 
defraud. 

This  is  a  question  for  the  jury.  And  whatever  other  rules  of  law 
there  may  be,  in  our  judgment  it  should  in  this  case  have  been  submit- 
ted to  them.  Here  was  a  presumption  in  favor  of  the  defendants, 
growing  out  of  the  possession  found  in  the  vendor.  Against  this  was 
the  testimony  of  the  vendee  alone.  His  credibility  in  such  position  was 
in  issue.  We  do  not  think  that  when  there  is  on  one  side  the  presump- 
tion against  the  legality  of  the  transaction  which  the  statute  makes ; 
and  on  the  other,  the  vendee  seeking  by  his  own  oral  testimony  alone 
to  repel  that  presumption,  that  the  matter  may  be  taken  from  the 
jury  and  passed  upon  by  the  court  as  a  question  of  law. 

For  this  reason  the  judgment  must  be  reversed,  and  a  new  trial  or- 
dered.*'*     *     *     * 

6  3  Part  of  the  opinion  is  omitted. 

6*  In  Stevens  v.  Irwin.  15  Cal.  503.  76  Am.  Dee.  500  (1S60),  the  court,  in 
construing  a  statute  which  enacted  that  "Every  sale,  *  *  *  unless  the 
same  be  accompanied  by  an  immediate  delivery,  and  be  followed  by  an 
actual  and  continued  change  of  possession,  *  *  *  shall  be  conclusive  ev- 
idence  of  fraud,     *     *     * "    said:     "The   'continued   change   of   possession,' 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  269 

WEEKS  V.  FOWLER. 

(Supreme  Court  of  New  Hampshire,  1902.     71  N.  H.  .518.  53  Atl.  543.) 

Trover,  for  store  fixtures.  The  defendant  is  trustee  in  bank- 
ruptcy of  the  estate  of  John  P.  Clay  &  Son.  Trial  at  the  March 
term,  1902,  of  the  superior  court,  before  Young,  J. 

The  plaintiff  bought  the  fixtures  of  the  Clays,  March  15,  1900, 
and  gave  them  credit  for  the  price  upon  an  existing  debt.  The  Clays 
were  to  have  the  possession  and  use  of  the  fixtures  until  the  plain- 
tiff was  ready  to  take  them  away.  About  August  18,  1900,  the 
plaintiff  discovered  that  the  Clays  were  insolvent ;  and  on  that  day 
he  and  two  other  creditors,  in  good  faith,  purchased  the  Clays'  stock 
in  trade,  consisting  of  provisions,  at  an  appraisal,  for  the  purpose  of 
securing  as  much  as  possible  of  their  indebtedness  to  the  purchasers. 
The  plaintiff  took  possession  of  the  stock  for  the  benefit  of  the  pur- 
chasers, and  of  the  fixtures  for  his  own  benefit,  and  retained  it  un- 
til it  was  taken  from  him  by  the  defendant,  if  possession  and  reten- 
tion thereof  can  be  found  from  the  following  facts : 

An  inventory  of  the  stock  was  taken,  and  the  goods  and  fixtures 
were  turned  over  to  the  plaintiff,  who  took  possession  of,  and  locked, 
the  building  in  which  they  were  kept.  The  store  was  closed  from 
August  18  to  August  21,  and  was  opened  on  the  latter  day  for  a  spe- 
cial sale  of  the  goods.  The  plaintiff  employed  one  of  the  Clays  and 
one  of  their  employees  to  assist  him  in  selling  out  the  stock.  The 
Clays'  sign  was  not  removed  from  the  windows,  nor  from  the  bul- 
letin board  on  which  the  special  sale  was  advertised.  The  plaintiff 
was  in  and  out  of  the  store  while  it  was  open,  in  charge  of  the  busi- 
ness. The  goods  and  fixtures  were  attached  as  the  property  of  the 
Clays,  at  a  time  when  the  plaintiff  was  absent  from  the  store,  and 
subsequently  went  into  the  possession  of  the  defendant. 

Upon  these  facts  the  court  found  for  the  plaintiff',  and  the  defend- 
ant excepted. 

Chase;,  J.  This  action,  being  trover,  is  within  the  jurisdiction  of 
the  state  courts.    Truda  v.  Osgood,  71  N.  H.  185,  51  Atl.  633. 

then,  does  not  mean  a  continuance  for  all  time  of  this  possession,  or  a  per- 
petual exclusion  of  all  use  or  control  of  the  property  by  the  original  vendor. 
A  reasonable  construction  must  be  given  to  this  language,  in  analogy  to  the 
doctrines  of  the  Courts  holding  the  general  principles  transcribed  into  the 
statute.  The  delivery  must  be  made  of  the  property;  the  vendee  must  take 
the  actual  possession ;  that  possession  must  be  open  and  unequivocal,  car- 
rying with  it  the  usual  marks  and  indications  of  ow^nership  by  the  vendee. 
It  must  be  such  as  to  give  evidence  to  the  world  of  the  claims  of  the  new 
owner.  He  must,  in  other  words,  be  in  the  usual  relation  to  the  property 
which  owners  of  goods  occupy  to  their  property.  This  possession  must  be 
continuous— not  taken  to  be  surrendered  back  again — not  formal,  but  sub- 
stantial. But  it  need  not  necessarily  continue  indefinitely,  when  it  is  bona 
fide  and  openly  taken,  and  is  kept  for  such  a  length  of  time  as  to  give  gen- 
eral advertisement  to  the  status  of  the  property  and  the  claim  to  it  by  the 
vendee." 


270  RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER        (Ch-  2 

The  principal  question  raised  by  the  exception  is  whether  the  sale 
of  the  fixtures  to  the  plaintiff  was  valid  as   against    Clay  &   Son's 
attaching  creditors.     By  the  agreement  of  sale,  Clay  &  Son  were  to 
have  the  possession  and  use  of  the  fixtures  until  the  plaintiff  got  ready 
ito  take  them  away,  and  Clay  &  Son  in  fact  had  such  possession  and 
/use  for  a  period  of  more  than  five  months  subsequent  to  the   date 
I  of  the  sale.     No  explanation  of  these  facts  was  given.     If  nothing 
further  appeared,   relating  to   the  possession,   these   facts  would   es- 
tablish the  existence  of  a  secret  trust  in  favor  of  the  vendors,  and 
would  render  the  sale  fraudulent  in  law,  and  void  as  against  attach- 
ing creditors.     Coburn  v.  Pickering,  3  N.  H.  415,  14  Am.  Dec.  375. 

But  it  further  appears  that  on  August  18  the  plaintiff  took  possession 
of  the  fixtures,  together  with  the  stock  of  goods  purchased  by  him 
and  other  creditors  of  Clay  &  Son  on  that  day,  and  that  he  retained 
the  possession  until  it  was  taken  from  him  by  the  defendant,  if  pos- 
session and  retention  thereof  can  be  found  from  the  facts  reported. 
No  attempt  was  made  by  creditors  or  by  the  defendant  to  avoid  the 
sale  until  August  21st  or  later.  If,  prior  to  such  attempt,  the  plain- 
I  tiff  received  actual,  open,  visible  possession  of  the  fixtures,  and  sub- 
I  sequently  retained  it,  the  secret  trust  would  terminate,  and  the  sale 
/  would  be  purged  of  its  fraudulent  character.  It  is  only  to  prevent 
creditors  from  being  deceived  by  false  appearances,  and  consequently 
defrauded,  that  the  law  infers  the  existence  of  a  secret  trust  in  favor 
of  the  vendor  when  he  retains  possession  of  chattels  after  a  sale,  and 
offers  no  explanation  for  the  inconsistency  of  his  acts.  When  the 
false  appearances  cease,  creditors  no  longer  require  the  benefit  of 
the  rule  to  protect  their  rights.  They  then  have  notice  of  the  ven- 
dee's claim  to  the  property,  and  must  govern  themselves  accordingly. 
Albee  v.  Webster,  16  N.  H.  362,  370;  Smyth  v.  Carlisle,  17  N.  H. 
417;  Mandigo  v.  Healey,  69  N.  H.  94,  45  Atl.  318;  Kendall  v.  Sam- 
son, 12  Vt.  515;  Ward  v.  Camp,  67  Vt.  461,  32  Atl.  236;  Gilbert  v. 
Decker,  53  Conn.  401,  4  Atl.  685. 

The  question,  then,  arises  whether  the  facts  reported  are  sufficient 
to   show   such   a   change   of   possession   on   August    18th   and   subse- 
quently as  the  law  requires  to  render  the  sale  valid.     If  they  are  suf- 
ficient as  matter  of  law,  or  if  they  are  sufficient  to  justify  the  finding 
of  such  change  as  matter  of  fact,  the  sale  must  be  upheld  as  against 
the  defendant.     The  only  facts  tending  to  show  that  the  change  of 
possession  was  not  actual,  open,  visible,  notorious — all  that  was  pos- 
isible — are   the  employrnent  of  one  of  the  vendors  and  one  of  their 
{servants  to  assist  in  selling  the  goods,  and  the  allowance  of  the  ven- 
/  dors'  signs  to  remain  in  the  positions  they  occupied  before  the  sale. 
Aside  from  these  facts,  it  appears  that  the  goods  and  fixtures  were 
turned  over  to  the  plaintiff,  presumably  by  Clay  &  Son;    that  an  in- 
ventory of  the  goods  was  taken;    that  the  plaintiff  had  possession  of 
the  building  in  which  the  property  was  located;    that  the  store  was 
closed  between  August  18th  and  August  21st;    that  a  special  closing- 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  271 

out  sale  of  the  goods  was  then  begun;  and  that  the  plaintiff  was  in 
and  out  of  the  store,  in  charge  of  the  business,  while  the  sale  was  in 
progress.  Not  only  were  the  formalities  usually  attending  a  sale  of 
such  property  complied  with,  but  they  were  followed  by  unmistakable 
and  notorious  acts  of  ownership  on  the  part  of  the  vendees.  The 
most  that  can  be  said  concerning  the  facts  first  mentioned  is  that  they 
have  a  tendency  to  conflict  with  the  latter  facts  in  respect  to  the 
change  of  possession.  They  do  not  necessarily  show  that  the  vendors 
still  retained  possession  in  whole  or  in  part.  Whatever  possessioi 
one  of  them  and  the  former  servant  had  while  assisting  in  selling  th( 
goods  was  the  possession  of  the  plaintiff.  They  were  his  servants 
Their  true  relations  to  him  and  the  goods  would  be  likely  to  appeal* 
from  the  presence  of  the  plaintiff  and  his  control  of  the  business, 
the  unusual  nature  of  the  sale,  the  absence  of  one  of  the  vendors, 
and  other  circumstances  surrounding  their  acts.  The  failure  to  re- 
move the  signs  was  competent  evidence  tending  to  prove  that  there 
had  been  no  change  of  possession,  but  it  was  not  conclusive.  It  might 
be  explained,  and  its  tendency  be  repelled,  by  other  evidence  throwing 
light  upon  the  transaction.  Seavy  v.  Dearborn,  19  N.  H.  351,  356. 
Nor  do  these  facts  introduce  into  the  question  of  possession  elements 
of  such  doubtful  nature  (the  true  character  of  which  it  is  so  difficult 
to  prove)  that  the  law,  in  the  exercise  of  a  wise  policy,  ought  to  lay 
hold  of  them,  and,  presuming  that  they  have  a  tendency  to  prove  a 
retention  of  possession  by  the  vendors,  decide  the  question  upon  a 
consideration  of  them  and  such  presumption,  entirely  ignoring  all 
other  facts.  When  they  are  considered  in  the  light  of  the  surround- 
ing circumstances,  their  true  character  is  almost  certain  to  appear. 

Two  cases  are  relied  upon  by  the  defendant  to  sustain  the  proposi- 
tion that  the  facts  reported  show,  as  matter  of  law,  that  the  change' 
of  possession  was  insufficient,— Sanborn  v.  Putnam,  61  N.  H.  506, 
and  Harrington  v.  Blanchard,  70  N.  H.  597,  49  Atl.  576.  Although 
there  is  much  similarity  between  these  cases  and  the  present  case, 
there  are  differences,  which,  though  small,  are  very  material,  and 
distinguish  the  cases  from  this  one.  In  both  of  the  cases  the  business 
was  carried  on  after  the  sale  the  same  as  before,  while  in  this  case  a 
significant  change  was  made, — a  closing-out  sale  was  begun.  This 
change  was  likely  to  attract  attention,  especially  as  the  business  was 
that  of  selling  provisions.  In  Sanborn  v.  Putnam  the  vendee  was 
employed  in  the  business  prior  to  the  sale,  and  it  was  found  as  a 
fact  that  there  was  no  visible  change  in  the  possession  of  the  prop- 
erty; while  in  this  case  the  plaintiff,  so  far  as  appears,  had  no  con- 
nection with  the  business  before  he  became  a  purchaser,  with  others, 
of  the  stock  of  goods.  Whatever  possession  the  plaintiff  then  received 
and  subsequently  retained  was  entirely  new.  In  Harrington  v. 
Blanchard  there  was  no  manual  delivery  of  the  stock,  while  in  this 
case  the  goods  and  fixtures  were  turned  over  to  the  vendee,  and  he 
took  charge  of  the  business,  and  was  in  and  out  of  the  store. 


272         RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER         (Ch.  2 

Upon  the  facts  reported,  it  cannot  be  held  as  a  matter  of  law  that 
there  was  not  sufficient  change  of  possession  on  August  18th  and  sub- 
sequently to  render  the  sale  valid-  as  against  the  vendors'  creditors, 
nor  that  there  was  not  sufficient  evidence  to  support  the  finding  of 
possession  as  a  matter  of  fact. 

This  conclusion  renders  it  unnecessary  to  consider  the  question 
whether  the  defendant,  being  a  trustee  in  bankruptcy  of  the  estate 
of  Clay  &  Son,  instead  of  an  attaching  or  judgment  creditor,  could 
avail  himself  of  the  rule  of  law  laid  down  in  Coburn  v.  Pickering,  3 
N.  H.  415,  14  Am.  Dec.  375,  and  like  cases,  to  avoid  the  sale  if  the 
change  of  possession  were  insufficient.  Thompson  v.  Esty,  69  N.  H. 
55,  45  Atl.  566;  In  re  Mullen  (D.  C.)  101  Fed.  413;  Act  July  1,  1898, 
c.  541,  §  70.  30  Stat.  565  (U.  S.  Comp.  St.  1901,  p.  3451). 

Exception  overruled.     All  concurred. 


PIERCE  v.  CHIPMAN. 

(Supreme  Court  of  Vermout,  1836.     8  Vt.  .3.34.) 

This  was  an  action  of  trespass,  for  taking  a  certain  heifer,  brought 
by  appeal  to  the  county  court.     Plea,  the  general  issue,  to  the  court. 

On  the  trial  the  following  facts  appeared.  Artemas  AI.  Pierce  was 
the  owner  of  this  heifer.  On  the  first  of  January  1835,  he  put  her 
to  one  Aldrich,  to  be  kept  and  fed  out  the  winter  and  until  grass. 
On  the  first  day  of  April,  he  and  the  plaintiff  conferred  on  a  purchase 
of  the  heifer,  and  on  the  eleventh  the  contract  was  concluded,  and  the 
plaintiff  gave  his  note  for  twelve  dollars  for  her.  The  said  Artemas 
wrote  and  sent  by  his  son  to  Aldrich  the  following  note: 

"Mr.  Aldrich,  I  have  sold  my  heifer  to  Dexter  Pierce.  I  will  how- 
ever pay  you  for  wintering  her  out,  as  that  is  our  bargain. 

''Respectfully  yours,  A.  M.  Pierce." 

Which  was  delivered  to  Aldrich  by  the  boy,  and  the  plaintiff  called 
on  Aldrich  and  went  with  him  to  the  barn  to  look  at  the  heifer  say- 
ing, he  had  bought  her.  Eight  days  after  this,  the  defendant,  a  deputy 
sheriff',  called  at  Aldrich's,  with  a  writ  of  attachment  against  said 
Artemas  M.  Pierce  and  took  away  said  heifer  thereon.  In  the  course 
of  the  trial  the  defendant  offered  in  evidence,  a  copy  of  said  writ, 
which  was  objected  to  by  the  plaintiff  on  the  ground  that  the  same 
was  not  admissible  on  the  general  issue;  but  the  same  was  admitted. 
The  court  decided,  that  there  was  a  sufficient  change  of  possession, 
of  said  heifer,  and  rendered  judgment  for  the  plaintiff.  To  which 
the  defendant  excepted. 

CoLLAMER,  J.°^  *  *  *  'j^j-ig  question  entirely  relates  to  the  pos- 
session of  this  heifer,  and  whether  that  possession  passed  to  the  plain- 
tiff on  sale,  so  as  to  vest  in  him  a  title  as  against  the  creditors  of  the 

66  Part  of  the  opinion  is  omitted. 


Sec.  11)      RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER  273 

vendor.  It  is  well  settled  law  in  this  state,  that  possession  must  ac- 
company and  follow  the  sale  of  personal  property,  in  order  to  vest  the 
same  as  against  the  attaching  creditors  or  bona  fide  purchasers  of  the 
vendor,  or,  in  other  words,  that  the  actual  possession  and  beneficiail 
use  of  the  property,  by  the  vendor  after  sale,  is  inconsistent  with  the 
sale,  and  conclusive  evidence  against  it,  so  far  as  relates  to  third  per- 
sons, more  especially  attaching  creditors.  To  this,  a  sheriit's  sale, 
made  by  legal  authority,  is  an  exception.  Still  what  constitutes  this 
change  of  possession  must  be  a  question  which  will  vary  with  circum- 
stances. In  the  case  Barney  v.  Brown,  2  Vt.  374,  19  Am.  Dec.  720, 
and  in  Spaulding  v.  Austin,  2  Vt.  555,  it  was  holden  that  if  the  prop- 
erty when  sold  was  in  the  hands  of  a  third  person,  and  he  undertook 
to  be  the  keeper  for  the  purchaser,  it  was  sufficient,  though  no  visible 
change  took  place.  In  Judd  &  Harris  v.  Langdon,  5  Vt.  231,  where 
the  keeper  had  never  been  informed  by  the  purchaser,  and  in  Moore 
V.  Kelley,  5  Vt.  34,  26  Am.  Dec.  283,  where  he  had  not  been  informed 
by  either  party,  and  the  possession  remained  with  the  keeper  after 
sale,  it  was  holden  that  no  sufficient  change  of  possession  took  place. 
A  middle  case  is  now  presented.  Here  the  heifer  was  in  the  keeping 
of  Aldrich  on  a  previous  contract  to  keep  out  the  winter,  and  upon 
the  sale  he  was  fully  informed  thereof,  by  both  parties.  This  consti- 
tutes a  new  case,  and  is  to  be  decided  by  analogy  and  the  application 
of  general  principles. 

Possession  is  a  strong  indication  of  ownership  of  property,  which 
the  law  constantly  recognizes  and  regards.  This,  especially  in  relation 
to  personal  property,  is  simple,  visible  and  easily  understood;  and 
should  as  far  as  practicable  be  made  the  test  of  property;  and  if 
this  be  carried  back  and  connected  with  actual  previous  ownership 
we  regard  it  as  conclusive  for  third  persons. 

When  the  actual  possession  of  property  is  in  another  at  the  time 
of  sale,  such  sale  is  not  accompanied  with  any  implied  warranty  of 
ownership  in  the  vendor  as  on  ordinary  sales.  This  is  on  the  ground 
that  the  purchaser  is  put  on  his  inquiry,  and  that  on  such  inquiry  he 
has  been  informed  to  his  satisfaction,  or  could  require  a  warranty  in 
fact.  If  real  estate  be  in  the  possession  of  a  third  person,  the  pur- 
chaser will  be  presumed  to  have  notice  of  any  unrecorded  deed  he 
may  have  thereto,  from  the  grantor.  This  is  on  the  same  ground, 
that  is,  that  he  is  put  on  inquiry  and  ascertained  the  fact.  When  the 
bailee  of  personal  property  is  fully  informed  of  the  sale  thereof,  both 
by  the  vendor  and  the  vendee,  he  becomes  keeper  for  the  true  owner 
by  operation  of  law,  and  his  consent  is  immaterial ;  and  if  the  vendor 
has  no  further  use  or  beneficial  interest  in  the  property,  nothing  tran- 
spires inconsistent  with  the  sale. 

In  the  case  of  Harman  et  al.  v.  Anderson  et  al.,  2  Camp.  R.  243, 
where  a  question  arose  as  to  change  of  possession  in  relation  to  stop- 
WooDw.  Sales — 18 


\ 


274         RETENTION  OF  POSSESSION  BY  SELLER  AFTER  TRANSFER         (Ch.  2 

page  in  transitu,  where  an  actual  possession  has  always  been  holden 
necessary  to  prevent  the  stoppage.  In  that  case  the  property  was 
in  the  possession  of  a  wharfinger  to  whom  notice  of  the  sale  was 
given  by  a  delivery  of  the  sale  note,  but  he  made  no  transfer  in  his 
books,  nor  accepted  the  delivery  of  said  note  or  entered  into  any 
undertaking  with  the  purchaser.  In  that  case  Lord  Ellenborough 
says :  "After  the  note  was  delivered  to  the  wharfinger,  they  were 
bound  to  hold  the  goods  on  account  of  the  purchaser.  The  delivery 
note  was  sufficient  without  any  actual  transfer  in  their  books.  From 
thenceforth  they  became  the  agents  of  the  vendee."  In  such  case  in 
consistency  with  general  principles,  all  purchasers  and  attaching  cred- 
itors .  are  put  upon  their  inquiry  and  may  arrive  at  truth ;  and  all 
danger  of  fraud  be  counteracted,  so  far  as  possession  and  use  are 
concerned,  though  no  visible  change  has  transpired. 

It  is  on  this  ground  the  cases  of  Barney  v.  Brown  and  Spaulding 
V.  Austin  are  decided.  There  no  external,  visible  change  of  posses- 
sion took  place  on  sale,  of  which  third  persons  could  take  notice ; 
nor  did  the  fact  that  the  bailees  undertook  to  keep  for  the  vendees, 
render  the  change  any  more  obvious.  But  the  property  was  in  a  third 
person's  possession,  which  would  put  all  creditors  and  purchasers  on 
inquiry  and  result  in  full  notice.  But  if  the  property  is  in  the  pos- 
session of  a  third  person  under  such  circumstances,  that  on  inquiry 
from  him  the  sale  would  not  be  learned,  then  this  security  entirely 
fails.  Therefore,  if  the  keeper  be  not  informed  of  the  sale,  as  in  the 
case  Moore  v.  Kelley,  or  if  he  be  only  informed  by  the  vendor  who 
may  have  given  him  a  wrong- account  from  sinister  motive,  and  whose 
ex  parte  account  was  entitled  to  no  credit,  as  in  the  case  of  Judd  et 
al.  V.  Langdon,  then  the  security  of  notice  which  the  law  requires 
entirely  fails,  and  the  possession  cannot  be  considered  so  changed  as 
to  be  regarded  by  creditors.  In  this  case  the  property  was  in  the  pos- 
session of  a  bailee,  and  this  puts  all  concerned  on  inquiry.  He  was 
fully  informed  of  the  sale  both  by  the  vendor  and  vendee  and  so 
became  keeper  for  the  vendee.  Thus  the  possession  was  changed 
with  the  sale,  and  creditors  and  purchasers  were  furnished  with  legal 
means  of  knowledge,  whether  the  bailee  entered  into  any  express  un- 
dertaking with  the  vendee  or  not. 

Judgment  affirmed. ''^ 

6  6  For  a  statement  of  the  law  in  the  several  states  as  to  delivery  to  the 
buyer  and  retention  of  possession  by  the  seller,  see  Williston,  Sales,  §§  353- 
404. 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  275 

SECTION  12.— EFFECT  OF  FRAUD  ON  THE  SELLER 


CUNDY  et  al.  v.  LINDSAY  et  al. 
(House  of  Lords,  1878.     L.  R.  3  App.  Cas.  459.) 

Appeal  from  a  decision  of  the  Court  of  Appeal,  which  had  reversed 
a  previous  decision  of  the  Queen's  Bench. 

In  1873,  one  Alfred  Blenkarn  hired  a  room  at  a  corner  house  in 
Wood  Street,  Cheapside — it  had  two  side  windows  opening  into  Wood 
Street,  but  though  the  entrance  was  from  Little  Love  Lane  it  was. 
by  him  constantly  described  as  Z7 ,  Wood  Street,  Cheapside.  His 
agreement  for  this  room  was  signed  "Alfred  Blenkarn."  The  now 
Respondents,  Messrs.  Lindsay  &  Co.,  were  linen  manufacturers,  car- 
rying on  business  at  Belfast.  In  the  latter  part  of  1873,  Blenkarn 
wrote  to  the  Plaintiffs  on  the  subject  of  a  purchase  from  them  of 
goods  of  their  manufacture — chiefly  cambric  handkerchiefs.  His  let- 
ters were  written  as  from  ''Z7 ,  Wood  Street,  Cheapside,"  where  he 
pretended  to  have  a  warehouse,  but  in  fact  occupied  only  a  room  on 
the  top  floor,  and  that  room,  though  looking  into  Wood  Street  on 
one  side,  could  only  be  reached  from  the  entrance  in  5,  Little  Love 
Lane.  The  name  signed  to  these  letters  was  always  signed  without/, 
any  initial  as  representing  a  Christian  name,  and  was,  besides,  sol;!, 
written  as  to  appear  "Blenkiron  &  Co."  There  was  a  highly  re-'' 
spectable  firm  of  W.  Blenkiron  &  Son,  carrying  on  business  in  Wood 
Street — but  at  number  123,  Wood  Street,  and  not  at  37. 

Messrs.  Lindsay  who  knew  the  respectability  of  Blenkiron  &  Son, 
though  not  the  number  of  the  house  where  they  carried  on  business, 
answered  the  letters,  and  sent  the  goods  addressed  to  "Messrs.  Blenk- 
iron &  Co.,  37,  Wood  Street,  Cheapside,"  where  they  were  taken  in 
at  once.  The  invoices  sent  with  the  goods  were  always  addressed  in 
the  same  way.  Blenkarn  sold  the  goods,  thus  fraudulentlv  obtained 
from  Messrs,  Lindsay,  to  different  persons,  and  among  the  rest  he 
sold  250  dozen  of  cambric  handkerchiefs  to  the  Messrs.  Cundy,  who 
were  bona  fide  purchasers,  and  who  resold  them  in  the  ordinary  way 
of  their  trade.  Payment  not  being  made,  an  action  was  commenced 
in  the  Mayor's  Court  of  London  by  Messrs.  Lindsay,  the  junior  part- 
ner of  which  firm,  Mr.  Thompson,  made  the  ordinary  affidavit  of  debt, 
as  against  Alfred  Blenkarn,  and  therein  named  Alfred  Blenkarn  as 
the  debtor.  Blenkarn's  fraud  was  soon  discovered,  and  he  was  prose- 
cuted at  the  Central  Criminal  Court,  and  convicted  and  sentenced. 

Messrs.  Lindsay  then  brought  an  action  against  Messrs.  Cundy  as 
for  unlawful  conversion  of  the  handkerchiefs.  The  cause  was  tried 
before  Mr.  Justice  Blackburn,  who  left  it  to  the  jury  to  consider 
whether   Alfred    Blenkarn,    with    a   fraudulent    intent    to   induce    the 


276  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

Plaintiffs  to  give  him  the  credit  belonging  to  the  good  character  of 
Blenkiron  &  Co.,  wrote  the  letters,  and  by  fraud  induced  the  Plain- 
tiffs to  send  the  goods  to  37,  Wood  Street — were  they  the  same  goods 
*  as  those  bought  by  the  Defendants — and  did  the  Plaintiffs  by  the  affi- 
davit of  debt  intend,  as  a  matter  of  fact,  to  adopt  Alfred  Blenkarn 
as  their  debtor.  The  first  and  second  questions  were  answered  in 
the  affirmative,  and  the  third  in  the  negative.  A  verdict  was  taken 
for  the  Defendants,  with  leave  reserved  to  move  to  enter  the  verdict 
for  the  Plaintiffs.  On  motion  accordingly,  the  Court,  after  argument, 
ordered  the  rule  for  entering  judgment  for  the  Plaintiffs  to  be  dis- 
charged, and  directed  judgment  to  be  entered  for  the  Defendants,  1 
Q.  B.  D.  348.  On  appeal,  this  decision  was  reversed  and  judgment 
ordered  to  be  entered  for  the  Plaintiffs,  IMessrs.  Lindsay,  2  Q.  B.  D. 
96.     This  appeal  was  then  brought. 

The  Lord  Chancellor  (Lord  Cairns).     i\Iy  Lords,  you  have  in 
this  case  to  discharge  a  duty  which  is  always  a  disagreeable  one  for 
lany  Court,  namely,  to  determine  as  between  two  parties,  both  of  whom 
/are  perfectly  innocent,  upon  which  of  the  two  the  consequences  of  a 
I  fraud  practised  upon  both  of  them  must  fall.     My  Lords,  in  discharg- 
ing that  duty  your  Lordships  can  do  no  more  than  apply,  rigorously, 
the  settled  and  well  known  rules  of  law.     Now,  with  regard  to  the 
title  to  personal  property,  the  settled  and  well  known   rules  of  law 
ilmay,  I  take  it,  be  thus  expressed :  by  the  law  of  our  country  the  pur- 
llchaser  of  a  chattel  takes  the  chattel  as  a  general  rule  subject  to  what 
Ilmay  turn  out  to  be  certain  infirmities  in  the  title.     If  he  purchases  the 
chattel  in  market  overt,  he  obtains  a  title  which  is  good  against  all 
the  world;  but  if  he  does  not  purchase  the  chattel  in  market  overt, 
md  if  it  turns  out  that  the  chattel  has  been  found  by  the  person  who 
)rofessed   to  sell  it,   the  purchaser  will   not   obtain   a  title   good   as 
'against  the   real   owner.     If   it  turns   out  that  the   chattel  has   been 
stolen  by  the  person  who  has  professed  to  sell  it,  the  purchaser  will 
not  obtain  a  title.     If  it  turns  out  that  the  chattel  has  come  into  the 
hands  of  the  person  who  professed  to  sell  it,  by  a  de  facto  contract, 
that  is  to  say,  a  contract  which  has  purported  to  pass  the  property  to 
him  from  the  owner  of  the  property,  there  the  purchaser  will  obtain 
a  good  title,  even  although   afterwards  it   should  appear  that   there 
were  circumstances  connected  with  that  contract,  which  would  enable 
the  original  owner  of  the  goods  to  reduce  it,  and  to  set  it  aside,  be- 
cause these  circumstances  so  enabling  the  original  owner  of  the  goods, 
or  of  the  chattel,  to  reduce  the  contract  and  to  set  it  aside,  will  not 
be  allowed  to  interfere  with  a  title  for  valuable  consideration  obtained 
by  some  third  party  during  the  interval  while  the  contract  remained 
unreduced. 

My  Lords,  the  question,  therefore,  in  the  present  case,  as  your  Lord- 
ships will  observe,  really  becomes  the  very  short  and  simple  one  which 
I  am  about  to  state.     Was  there  any  contract  which,  with  regard  to 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  277 

the  goods  in  question  in  this  case,  had  passed  the  property  in  the  11 
goods  from  the  Messrs.  Lindsay  to  Alfred  Blenkarn?  If  there  was'' 
any  contract  passing  that  property,  even  ahhough,  as  I  have  said, 
that  contract  might  afterwards  be  open  to  a  process  of  reduction,  upon 
the  ground  of  fraud,  still,  in  the  meantime,  Blenkarn  might  have  con- 
veyed a  good  title  for  valuable  consideration  to  the  present  Appel- 
lants. 

Now,  my  Lords,  there  are  two  observations  bearing  upon  the  solu- 
tion of  that  question  which  I  desire  to  make.  In  the  first  place,  if 
the  property  in  the  goods  in  question  passed,  it  could  only  pass  by  way 
of  contract;  there  is  nothing  else  which  could  have  passed  the  prop- 
erty. The  second  observation  is  this,  your  Lordships  are  not  here 
embarrassed  by  any  conflict  of  evidence,  or  any  evidence  whatever 
as  to  conversations  or  as  to  acts  done,  the  whole  history  of  the  whole 
transaction  lies  upon  paper.  The  principal  parties  concerned,  the  Re- 
spondents and  Blenkarn,  never  came  in  contact  personally — everything 
that  was  done  was  done  by  writing.  What  has  to  be  judged  of,  and 
what  the  jury  in  the  present  case  had  to  judge  of,  was  merely  the 
conclusion  to  be  derived  from  that  writing,  as  applied  to  the  admitted 
facts  of  the  case. 

Now,  my  Lords,  discharging  that  duty  and  answering  that  inquiry, 
what  the  jurors  have  found  is  in  substance  this :  it  is  not  necessary  to 
spell  out  the  words,  because  the  substance  of  it  is  beyond  all  doubt. 
They  have  found  that  by  the  form  of  the  signatures  to  the  letters 
which  were  written  by  Blenkarn,  by  the  mode  in  which  his  letters 
and  his  applications  to  the  Respondents  were  made  out,  and  by  the 
way  in  which  he  left  uncorrected  the  mode  and  form  in  which,  in  turn, 
he  was  addressed  by  the  Respondents ;  that  by  all  those  means  he  led, 
and  intended  to  lead,  the  Respondents  to  believe,  and  they  did  believe, 
that  the  person  with  whom  they  were  communicating  was  not  Blen- 
karn, the  dishonest  and  irresponsible  man,  but  was  a  well  known  and 
solvent  house  of  Blenkiron  &  Co.,  doing  business  in  the  same  street. 
My  Lords,  those  things  are  found  as  matters  of  fact,  and  they  are 
placed  beyond  the  range  of  dispute  and  controversy  in  the  case. 

If  that  is  so,  what  is  the  consequence?  It  is  that  Blenkarn — the  dis- 
honest man,  as  I  call  him — was  acting  here  just  in  the  same  way  as 
if  he  had  forged  the  signature  of  Blenkiron  &  Co.,  the  respectable 
firm,  to  the  applications  for  goods,  and  as  if,  when,  in  return,  the  goods 
were  forwarded  and  letters  were  sent,  accompanying  them,  he  had 
intercepted  the  goods  and  intercepted  the  letters,  and  had  taken  pos- 
session of  the  goods,  and  of  the  letters  which  were  addressed  to,  and 
intended  for,  not  himself,  but  the  firm  of  Blenkiron  &  Co.  Now,  my 
Lords,  stating  the  matter  shortly  in  that  way,  I  ask  the  question,  how 
is  it  possible  to  imagine  that  in  that  state  of  things  any  contract  could 
have  arisen  between  the  Respondents  and  Blenkarn,  the  dishonest 
man?     Of  him  they  knew  nothing,  and  of  him  they  never  thought. 


278  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

I  With  him  they  never  intended  to  deal.  Their  minds  never,  even  for 
I  an  instant  of  time  rested  upon  him,  and  as  between  him  and  them 
there  was  no  consensus  of  mind  which  could  lead  to  any  agreement 
or  any  contract  whatever.  As  between  him  and  them  there  was  mere- 
ly the  one  side  to  a  contract,  where,  in  order  to  produce  a  contract, 
two  sides  would  be  required.  With  the  firm  of  Blenkiron  &  Co.  of 
course  there  was  no  contract,  for  as  to  them  the  matter  was  entirely 
unknown,  and  therefore  the  pretence  of  a  contract  was  a  failure. 

The  result,  therefore,  my  Lords,  is  this,  that  your  Lordships  have 
not  here  to  deal  with  one  of  those  cases  in  which  there  is  de  facto  a 
contract  made  which  may  afterwards  be  impeached  and  set  aside,  on 
the  ground  of  fraud ;  but  you  have  to  deal  with  a  case  which  ranges 
itself  under  a  completely  different  chapter  of  law,  the  case  namely 
in  which  the  contract  never  comes  into  existence.  My  Lords,  that 
being  so,  it  is  idle  to  talk  of  the  property  passing.  The  property  re- 
mained, as  it  originally  had  been,  the  property  of  the  Respondents, 
and  the  title  which  was  attempted  to  be  given  to  the  Appellants  was 
a  title  which  could  not  be  given  to  them. 

My  Lords,  I  therefore  move  your  Lordships  that  this  appeal  be 
dismissed  with  costs,  and  the  judgment  of  the  Court  of  Appeal  af- 
firmed.^^ 


RODLIFF  et  al.  v.  DALLINGER. 

(Supreme  Judicial  Court  of  JNlassachusetts,  1SS6.     141  Mass.  1,  4  N.  E.  805, 

55  Am.  Rep.  439.) 

Replevin  of  twenty  bags  of  California  wool.  Trial  in  the  Superior 
Court,  before  Knowlton,  J.,  who  allowed  a  bill  of  exceptions,  in  sub- 
stance as  follows : 

The  plaintiffs,  under  the  firm  name  of  Rodliff  and  Eaton,  were  wool 
dealers  in  Boston,  and,  on  or  about  November  15,  1882,  delivered  the 
wool  in  controversy  to  one  Henry  Clementson,  a  wool  dealer  and 
broker  in  Boston,  as  hereinafter  stated. 

The  defendant  was  a  public  warehouseman  in  Boston,  who  re- 
ceived the  wool  in  question  on  storage  from  Clementson,  on  or  about 
said  November  15,  1882,  not  knowing  where  he  obtained  it,  and  issued 
a  warehouse  receipt  for  the  same,  described  hereafter. 

On  the  day  after  the  delivery  of  said  wool,  Clementson  applied  to 
the  Massachusetts  Loan  &  Trust  Company  of  Boston,  a  corporation 
whose  business  is  that  of  advancing  money  upon  staple  merchandise, 
for  a  loan  of  $2,000  on  said  wool,  then  in  the  public  warehouse  of  the 
defendant.  The  company  sent  a  man  to  the  warehouse  to  examine  the 
wool,  and,  on  his  report,  made  a  loan  of  $2,000  to  Clementson,  taking 
the  warehouse  receipt  of  the  defendant,  reciting  that  the  wool  had  been 
received  from  Clementson  and  placed  on  storage  for  account  of  the 

6  7  Concurring  opinions  were  delivered  by  Lords  Hatlierley  and  Penzance. 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  279 

Massachusetts  Loan  &  Trust  Company,  the  company  having  no  knowl- 
edge where  Clementson  obtained  the  wool,  his  statement  being  that  he 
had  purchased  the  wool  to  sell  upon  the  market ;  and  the  company, 
being  the  real  party  in  interest,  defended  this  action. 

The  plaintiff  Rodliff  testified  that,  in  September,  1882,  his  firm  sold 
and  delivered  to  Clementson  certain  California  wool,  of  the  value  of 
about  $2,000,  entered  the  same  on  their  books  as  sold  to  him,  and 
made  out  a  bill  of  sale  directly  to  him,  the  wool  being  sold  on  sixty 
days'  time,  which  wool  was  duly  paid  for  by  Clementson ;  that  after- 
wards, prior  to  November  14  of  that  year,  the  plaintiffs  made  two 
other  sales  to  Clementson  out  of  the  same  lot  of  California  wool, 
which  had  been  consigned  to  them  for  sale;  that  Clementson,  acting 
as  broker  in  each  of  these  last  two  sales,  received  his  brokerage,  and 
gave  the  name  of  the  persons  for  whom  the  wool  was  purchased, 
namely,  Pomeroy  &  Sons,  of  Pittsfield ;  that  the  wool  in  both  these 
cases  was  charged  to  Pomeroy  &  Sons  on  the  books  of  the  plaintiffs, 
together  with  the  entry  of  brokerage  to  Clementson ;  that  a  bill  was 
also  made  out  directly  to  Pomeroy  &  Sons ;  and  that  in  both  these 
cases  the  wool  was  sold  on  time,  and  was  duly  paid  for. 

On  or  about  November  14,  1882,  one  of  the  plaintiffs  had  an  inter- 
view with  Clementson,  about  which  he  testified  as  follows :  "He  came 
in  and  brought  an  offer  of  twenty-two  and  one  fourth  cents  per  pound 
for  some  manufacturer.  This  was  for  twenty  bales  of  the  same  lot 
of  California  wool.  Finally  he  said  he  did  not  want  us  to  know  who 
the  manufacturer  was ;  he  wanted  to  conceal  that.  I  told  him  I  did 
not  know  how  he  could  get  over  it,  for  I  would  not  sell  him  that 
amount  or  anywhere  near  it.  We  made  an  arrangement  that  we  were 
to  let  him  have  the  wool,  and  were  not  to  lose  our  claim  upon  it,  but 
he  was  to  hand  us  over  whatever  he  got  for  it  as  soon  as  he  got  it. 
I  said  we  would  weigh  up  that  wool,  and  he  was  to  hand  us  over  the 
check  as  soon  as  he  got  it."  The  witness  was  present  when  the  w'ool 
was  loaded  on  the  wagon  Clementson  sent  to  receive  it.  The  plain- 
tiffs did  nothing  about  collecting  pay  for  the  wool  until  they  had 
learned  that  Clementson  had  left  the  country,  and  made  no  inquiry  of 
him  relating  to  the  same,  the  sixty-one  days'  credit  not  having  then  ex- 
pired. 

The  plaintiffs  asked  Clementson  who  the  parties  were,  and  he  would 
not  tell  them,  but  said  they  were  as  good  as  Pomeroy  &  Sons,  who 
were  in  good  standing  and  credit  with  the  plaintiffs. 

The  wool  was  sold  on  sixty-one  days'  credit,  and  was  entered  on  the 
books  of  the  plaintiff  as  a  direct  sale  to  Clementson,  and  a  bill  of  par- 
cels was  made  directly  to  Clementson,  as  in  the  sale  to  him  in  Sep- 
tember, and  no  mention  was  made,  either  on  the  books  or  on  the  bill, 
of  any  other  person,  or  of  any  brokerage.     *     *     * 

It  was  an  undisputed  fact  that  Clementson  had  not  any  such  offer, 
and  did  not  act  for  any  such  person  as  the  plaintiffs  testified  that  he 
represented  at  the  time  of  obtaining  the  wool. 


k 


2S0  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

The  judge  instructed  the  jury  that  there  were  three  possible  views 
of  the  transaction :  (1)  That  they  might  find  it  was  an  ordinary  sale 
to  Clementson ;  or  (2)  that  it  was  not  a  sale  to  Clementson,  but  was  a 
delivery  to  Clementson  as  a  broker,  with  a  view  to  his  selling  it  to 
some  customer,  whom  he  expected  afterward  to  negotiate  with,  and 
to  consummate  a  sale  with  him ;  and  if  they  found  this,  then  there 
was  a  special  provision  of  the  statute  which  protects  persons  dealing 
in  good  faith  with  a  broker  having  property  in  that  way,  so  far  as 
(/  j  they  make  advances  or  loans  upon  property  in  pledge,  in  good  faith, 
to  persons  who  have  custody  of  property  as  brokers,  with  authority  to 
sell  or  dispose  of  it ;  or  (3)  that  it  was  not  a  sale  to  Clementson,  or  a 
delivery  to  him  as  broker  with  authority  to  sell,  but  that  it  was  a  de- 
livery to  Clementson  upon  his  representation  that  he  came  from  a 
purchaser  representing  him,  with  an  offer  for  it, — a  purchaser  whose 
'b  name  he  did  not  disclose, — and  that  these  goods  were  delivered-  to  him 
as  the  agent  of  that  purchaser, — as  a  sale  to  that  purchaser;  and  if 
this  was  the  fact,  that  the  plaintiffs  were  entitled  to  the  property,  not- 
withstanding it  was  subsequently  pledged  to  the  Massachusetts  Loan 
&  Trust  Company. 

The  judge  further  instructed  the  jury  upon  the  third  view  "that 
if  this  was  a  transfer  upon  a  false  representation  made  by  Clementson, 
— a  representation  that  he  came  with  an  offer  from  a  third  person 
whose  name  he  did  not  wish  to  disclose, — and  the  goods  were  delivered 
to  Clementson  as  a  sale  to  him  as  the  agent  of  this  third  person,  whose 
offer  he  was  bearing,  with  the  view  that  the  property  should  pass  at 
the  time  to  that  third  person,,  and  thus  constitute  a  sale  to  such  per- 
son, from  whom  payment  was  to  be  made  subsequently,  and  the  pay- 
ment to  be  brought  back  by  Clementson  as  the  agent  of  that  third  per- 
son, Clementson  had  no  right  afterward  to  deal  with  that  property  at 
all.  He  got  it  into  his  possession  by  fraud,  and  he  got  it  into  his  pos- 
session without  any  authority  to  make  any  subsequent  sale  or  to  do 
anything  with  it ;  and  that  it  was  wrongly  in  his  possession  from  the 
start,  and  any  person  who  saw  fit  to  advance  money  upon  it  or  to  buy 
it,  however  honestly,  and  in  perfect  good  faith,  would  be  the  loser,  and 
the  plaintiffs  could  pursue  the  property,  and  get  it  wherever  they  could 
find  it,  whenever  the  fraud  practiced  upon  them  should  come  to  their 
knowledge." 

The  jury  returned  a  verdict  for  the  plaintiff's;  and  the  defendant 
alleged  exceptions.**^ 

Holmes,  J.  The  plaintiffs'  evidence  warranted  the  conclusion  that 
they  refused  to  sell  to  Clementson,  the  broker,  but  delivered  the  wool 
to  him  on  the  understanding  that  it  was  sold  to  an  undisclosed  manu- 
facturer in  good  credit  with  the  plaintiffs.  This  evidence  was  not  ob- 
jected to,  and  was  admissible,  notwithstanding  the  fact  that  the  sale 
was  entered  on  the  plaintiffs'  books  as  a  sale  to  Clementson,  and  that 

es  Part  of  the  statement  of  facts  is  omitted. 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  281 

a  bill  was  made  to  him.  Com.  v.  Jeffries,  7  Allen,  548,  564,  83  Am. 
Dec.  712.  It  was  admitted  that  Clementson  in  fact  was  not  acting  for 
such  an  undisclosed  principal,  and  it  follows  that,  if  the  plaintiffs'  ev- 
idence was  believed,  there  was  no  sale.  There  could  not  be  one  to  ' 
this  supposed  principal,  because  there  was  no  such  person ;  and  there 
was  not  one  to  Clementson,  because  none  purported  to  be  made  to  him ; 
but,  on  the  contrary,  such  a  sale  was  expressly  refused,  and  excluded. 
Edmunds  v.  Merchants'  Despatch  Transp.  Co.,  135  Mass.  283 ;  Aborn 
V.  Same,  Id. 

It  was  suggested  that  this  case  differed  from  the  one  cited,  because 
there  the  principal  was  disclosed,  whereas  here  he  was  not,  and  that 
credit  could  not  be  supposed  to  have  been  given  to  an  unknown  per- 
son. We  have  nothing  to  say  as  to  the  weight  which  this  argument 
ought  to  have  with  a  jury,  beyond  observing  that  the  plaintiffs  had 
reason,  in  Clementson's  representations,  for  giving  credit  to  the  sup- 
posed manufacturer.  But  there  is  no  rule  of  law  that  makes  it  im- 
possible to  contract  with  or  sell  to  an  unknown  but  existing  party,  and 
if  the  jury  find  that  such  a  sale  was  the  only  one  that  purported  to 
be  made,  the  fact  that  it  failed  does  not  turn  it  into  a  sale  to  the  party 
conducting  the  transaction.  Schmaltz  v.  Avery,  16  Q.  B.  655,  only 
decided  that  a  man's  describing  himself  in  a  charter-party  as  "agent 
of  the  freighter"  is  not  sufficient  to  preclude  him  from  alleging  that 
he  is  the  freighter.  It  does  hint  that  the  agent  could  not  be  excluded 
by  express  terms,  or  by  the  description  of  the  principal,  although 
insufficient  to  identity  the  individual  dealt  with,  as  happened  here; 
still  less,  that,  in  favor  of  third  persons,  the  agent  would  be  presumed, 
without  evidence,  to  be  the  undisclosed  principal,  although  expressly 
excluded. 

The  invalidity  of  the  transaction  in  the  case  at  bar  does  not  depend 
upon  fraud,  but  upon  the  fact  that  one  of  the  supposed  parties  is 
wanting,  it  does  not  matter  how.  Fraud  only  becomes  important,  as 
such,  when  a  sale  or  contract  is  complete  in  its  formal  elements,  and 
therefore  valid  unless  repudiated,  but  the  right  is  claimed  to  rescind 
it.  It  goes  to  the  motives  for  making  the  contract,  not  to  its  existence ; 
as,  when  a  vendee  expressly  or  impliedly  represents  that  he  is  solvent, 
and  intends  to  pay  for  goods,  when  in  fact  he  is  insolvent,  and  has 
no  reasonable  expectation  of  paying  for  them ;  or,  being  identified  by 
the  senses,  and  dealt  with  as  the  person  so  identified,  says  that  he  is 
A.  when  in  fact  he  is  B.  But  when  one  of  the  formal  constituents  of 
a  legal  transaction  is  wanting,  there  is  no  question  of  rescission, — 
the  transaction  is  void  ab  initio, — and  fraud  does  not  impart  to  it, 
against  the  will  of  the  defrauded  party,  a  validity  that  it  would  not 
have  if  the  want  were  due  to  innocent  mistake. 

The  sale  being  void,  and  not  merely  voidable,  or,  in  simpler  words, 
there  having  been  no  sale,  the  delivery  to  Clementson  gave  him  no 
power  to  convey  a  good  title  to  a  bona  fide  purchaser.  He  had  not 
even  a  defective  title,  and  his  mere  possession  did  not  enable  him  to 


282  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

pledge  or  mortgage.  The  considerations  in  favor  of  protecting  bona 
fide  dealers  with  persons  in  possession,  in  cases  like  the  present,  were 
much  urged  in  Thacher  v.  Moors,  134  Mass.  156,  but  did  not  prevail. 
Much  less  can  they  be  allowed  to  prevail  against  a  legal  title  without 
the  intervention  of  statute. 
Exceptions  overruled.®* 


SWIFT  v.  ROUNDS. 

(Supreme  Court  of  Rhode  Island,  1S96.     19  R.  1.  527,  35  Atl.  45,  33  Ia  R.  A. 

561,  61  Am.   St.  Rep.  791.) 

TiLLiNGHAST,  J.  This  is  trespass  on  the  case  for  deceit.  The  first 
count  in  the  declaration  alleges  that  the  defendant,  intending  to 
deceive  and  defraud  the  plaintitfs,  did  buy  of  them  on  credit  certain 
goods  and  chattels,  of  the  value  of  $400 ;  the  said  defendant  not  then 
and  there  intending  to  pay  for  the  same,  but  intending  wickedly  and 
fraudulently  to  cheat  the  plaintiffs  out  of  the  value  of  said  goods  and 
chattels,  which  said  sum  of  $400  the  defendant  refuses  to  pay,  to  the 
plaintiffs'  damage,  etc.  The  second  count,  after  setting  out  the  fraud- 
ulent conduct  aforesaid,  alleges  that  the  defendant  thereby  then  and 
there  represented  that  he  intended  to  pay  for  said  goods,  but  that  he 
did  not  then  and  there  intend  to  pay  for  the  same,  but  wickedly  and 
fraudulently  intended  to  cheat  the  plaintiffs  out  of  the  value  of  said 
goods  and  chattels,  etc. 

To  this  declaration  the  defendant  has  demurred,  and  for  grounds 
of  demurrer  to  the  first  count  thereof,  he  says :  (1)  That  the  plain- 
tiffs do  not  allege  any  false  representation  by  the  defendant ;  (2)  that 
the  plaintiffs  do  not  allege  that  they  have  acted  upon  any  false  rep- 
resentation of  the  defendant ;  and  (3)  that  the  plaintiffs  do  not  allege 
any  damage  suffered  by  them  in  acting  upon  any  false  representation 
of  the  defendant.  The  grounds  of  demurrer  to  the  second  count 
are:  (1)  That  the  plaintiff's  do  not  allege  any  false  representation 
by  the  defendant  as  to  any  fact  present  or  past,  but  only  as  to  some- 
thing that  would  happen  in  the  future,  which,  if  in  the  future  it 
/proved  not  to  be  true,  would  not  be  the  subject-matter  of  a  false 
I '  representation,  but  simply  a  promise  broken,  and  therefore  not  a 
ground  of  an  action  of  deceit ;  (2)  that  the  plaintiffs  do  not  allege 
that  they  acted  upon  any  false  representation  made  by  the  defend- 
ant; and  (3)  that  the  plaintiffs  do  not  allege  that  they  suffered  any 
damage  by  acting  upon  any  false  representation  made  by  the  de- 
fendant to  the  plaintiffs. 

We  are  inclined  to  the  opinion,  after   some  hesitation,  that  the 

I  declaration  states  a  case  of  deceit.  Any  fraudulent  misrepresenta- 
tion or  device,  whereby  one  person  deceives  another  who  has  no 
means  of  detecting  the  fraud,  to  his  injury  and  damage,  is  a  sufficient 

69  Compare  Stoddard  v.  Ham.  129  Mass.  383,  37  Am.  Rep.  369  (ISSO). 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  283 

ground  for  an  action  of  deceit.  Deceit  is  a  species  of  fraud,  and  con- 
sists of  any  false  representation  or  contrivance  whereby  one  person 
overreaches  and  misleads  another,  to  his  hurt.  And,  while  the  fraud- 
ulent misrepresentation  relied  upon  usually  consists  of  statements 
made  as  to  material  facts,  either  verbally  or  in  writing,  yet  it  may  be 
made  by  conduct  as  well.  Grinnell,  Deceit,  p.  35.  A  man  may  not 
only  deceive  another  to  his  hurt  by  deliberately  asserting  a  falsehood, 
as,  for  instance,  by  stating  that  A.  is  an  honest  man  when  he  knows 
him  to  be  a  rogue,  or  that  a  horse  is  sound  and  kind  when  he  knows 
him  to  be  unsound  and  vicious,  but  also  by  any  act  or  demeanor] 
which  would  naturally  impress  the  mind  of  a  careful  man  with  a  mis 
taken  belief,  and  form  the  basis  of  some  change  of  position  by  him 
1  Story,  Eq.  Jur.  §  192. 

In  Ex  parte  Whittaker,  10  Ch.  App.  449,  MeUish,  L.  J.,  says :  "It 
is  true,  indeed,  that  a  party  must  not  make  any  misrepresentation, 
express  or  implied ;  and,  as  at  present  advised,  I  think  Shackelton, 
when  he  went  for  the  goods,  must  be  taken  to  have  made  an  implied 
representation  that  he  intended  to  pay  for  them,  and  if  it  were  clearly 
made  out  that  at  that  time  he  did  not  intend  to  pay  for  them,  I  should 
consider  that  a  case  of  fraudulent  misrepresentation  was  shown." 
See,  also,  Lobdell  v.  Baker,  1  Mete.  (Mass.)  201,  35  Am.  Dec.  358; 
1  Benj.  Sales  (Ed.  1888)  §  524. 

In  the  case  at  bar,  the  declaration  alleges  that  the  defendant  bought 
the  goods  in  question  upon  credit,  fraudulently  intending  not  to 
pay  for  them,  but  to  cheat  the  plaintiffs  out  of  the  value  thereof. 
By  the  act  of  buying  the  goods  of  the  plaintiffs,  the  defendant  im- 
pliedly promised  to  pay  for  the  same,  which  promise  was  equally  as 
strong  and  binding  as  though  it  had  been  made  in  words  or  even 
in  writing.  The  plaintiffs  had  the  right  to  rely  on  this  promise,  and 
to  presume  that  it  was  made  in  good  faith.  It  turns  out,  however, 
according  to  the  allegations  aforesaid,  that  it  was  not  made  in  good 
faith,  but,  on  the  contrary,  was  made  for  the  purpose  of  deceiving 
the  plaintiffs  into  the  act  of  parting  with  their  goods,  the  defendant 
intending  by  the  transaction  to  cheat  them  out  of  the  value  thereof. 
The  fraud,  then  consisted  in  the  making  of  the  promise,  in  the  manner 
aforesaid,  with  the  intent  not  to  perform  it.  By  the  act  of  purchas 
ing  the  goods  on  credit  the  defendant  impliedly  represented  that  he 
intended  to  pay  for  them.  The  plaintiff  relied  on  this  representation, 
which  was  material  and  fraudulent,  and  was  damaged  thereby.  All 
the  necessary  elements  of  fraud  or  deceit,  therefore,  were  present 
in  the  transaction.  See  Upton  v.  Vail,  6  Johns.  (N.  Y.)  181,  5  Am. 
Dec.  210;  Bartholomew  v.  Bentley,  15  Ohio,  666,  45  Am.  Dec.  596; 
Bish.  Noncont.  Law,  §§  314-318;  Burrill  v.  Stevens,  72>  Me.  400, 
40  Am.  Rep.  366;  Barney  v.  Dewey,  13  Johns.  (N.  Y.)  226,  7  Am. 
Dec.  372;'  Hubbell  v.  Meigs,  50  N.  Y.  491. 

The  general  doctrine  which  controls  this  action  is  fully  reviewed  by 
Mr.  Wallace  in  a  note  to  Pasley  v.  Freeman,  2  Smith,  Lead.  Cas.  101. 


284  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

As  said  by  Bigelow  (Frauds,  p.  484) :  "To  profess  an  intent  to  do  or 
not  to  do,  when  a  party  intends  the  contrary,  is  as  clear  a  case  of  mis- 
representation and  of  fraud  as  could  be  made."  See,  also,  page  466,  as 
to  what  constitutes  a  representation.  In  Goodwin  v.  Home,  60  N.  H. 
486,  the  court  say :  "Ordinarily  false  promises  are  not  fraudulent,  nor 
evidence  of  fraud,  and  only  false  representations  of  past  or  existing 
facts  are  actionable,  or  can  be  made  the  ground  of  defense.  *  *  * 
But  when  a  promise  is  made  with  no  intention  of  performance,  and 
for  the  very  purpose  of  accomplishing  a  fraud,  it  is  a  most  apt  and 
effectual  means  to  that  end,  and  the  victim  has  a  remedy  by  action 
or  defense.  Such  are  cases  of  concealed  insolvency  and  purchases 
of  goods  with  no  intention  to  pay  for  them." 

In  Byrd  v.  Hall,  1  Abb.  Dec.  (N.  Y.)  286,  it  was  held  that,  although 
a  purchase  of  goods  on  credit  by  one  who  knows  himself  to  be  insol- 
vent is  not  fraudulent,  yet,  where  it  is  made  with  a  preconceived  de- 
sign not  to  pav,  it  is  fraudulent.  See,  also,  MulHken  v.  Millar.  12 
R.  I.  296;  Thompson  v.  Rose,  16  Conn.  81,  41  Am.  Dec.  121;  Hen- 
nequin  v.  Naylor,  24  N.  Y.  139;  Devoe  v.  Brandt,  53  N.  Y.  465; 
Story,  Sales  (2d  Ed.)  §  176,  and  cases  in  note  2;  Douthitt  v.  Apple- 
gate,'  33  Kan.  395,  6  Pac.  575,  52  Am.  Rep.  533 ;  IMorrill  v.  Black- 
man,  42  Conn.  324;  Skinner  v.  Flint,  105  ^lass.  528;  Earl  of  Bristol 
V.  Wilsmore,  2  Dowl.  &  R.  760;  Lobdell  v.  Baker,  1  Aletc.  (Mass.) 
193.  35  Am.  Dec.  358;  Coolev,  Torts  (2d  Ed.)  559;  Load  v.  Green, 
15  Mees.  &  W.  215. 

In  short,  the  making  of  one  state  of  things  to  appear  to  those  with 
whom  you  deal  to  be  the  true  state  of  things,  while  you  are  acting 
on  the  knowledge  of  a  different  state  of  things, — among  the  oldest 
definitions  of  fraud  in  contracts, — is  exemplified  in  this  case.  See 
Lee  V.  Jones,  17  C.  B.  (N.  S.)  494.  The  defendant  made  it  to  ap- 
pear, by  the  act  of  buying  on  credit,  that  he  intended  to  pay  for  the 
goods  in  question,  while  in  fact  he  intended  to  cheat  the  plaintiffs 
out  of  them;  and  to  hold  that  such  a  transaction  does  not  amount 
to  fraud  would  be  to  make  it  easy  for  cheats  and  swindlers  to  escape 
the  just  consequence  of  their  unrighteous  acts. 

We  have  hesitated  somewhat  in  arriving  at  the  conclusion  that  an 
action  of  deceit  will  lie  upon  the  facts  set  out  in  the  declaration  for 
the  reason  that,  among  the  numerous  cases  of  fraud  and  deceit  to 
be  found  in  the  books,  we  have  not  been  referred  to  any,  nor  have 
we  been  able  to  find  any,  where  the  action  of  deceit  was  based  simply 
on  the  act  of  buying  goods  on  credit,  intending  not  to  pay  for  them. 
In  Lyons  v.  Briggs,  14  R.  I.  224,  51  Am.  Rep.  372,  which  was  an 
action  of  deceit,  Durfee,  C.  J.,  intimates,  however,  that  deceit  would 
He,  in  a  case  Hke  the  one  before  us,  by  the  use  of  the  following  lan- 
guage:  "It  is  not  alleged  that  the  buyer  did  not  intend  to. pay  when 
he  bought,  but  only  that  he  falsely  and  fraudulently  asserted  that  he 
could  be  safely  trusted."  But  the  authorities  are  overwhelming  to 
the  effect  that  it  is  a  fraud  to  purchase  goods  intending  not  to  pay 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  285 

for  them,  and  that  the  vendor,  upon  discovering  the  fraud,  may  re- 
pudiate the  sale  and  reclaim  the  property,  or  may  sue  in  trover  or] 
in  some  other  action  of  tort  for  the  damages  sustained  by  the  fraud./ 
And,  this  being  so,  we  fail  to  see  why  an  action  of  deceit,  which  is/ 
an  action  of  tort  based  on  fraud,  may  not  lie  as  well ;  for  to  obtain/ 
goods  on  credit,  intending  not  to  pay  for  them,  is  as  much  a  trick 
or  device  as  it  would  be  to  falsely  represent  in  words  any  material 
fact  whereby  the  vendor  should  be  induced  to  part  therewith. 

But  defendant's  counsel  contends  that  the  alleged  representation 
was  not  as  to  any  fact,  present  or  past,  but  merely  as  to  what  the 
defendant  would  do  in  the  future  with  reference  to  paying  for  the 
goods,  and  that  to  say  what  one  intends  to  do  is  identical  to  sayings 
what  one  will  do  in  the  future,  which  amounts  simply  to  a  promise; 
and,  furthermore,  that  a  representation  of  what  will  happen  in  the 
future,  even  if  not  realized,  is  not  such  a  representation  as  will  sup- 
port this  action.  We  do  not  assent  to  this  method  of  reasoning. 
The  state  nt  a  man'^  mind  at  a  g-jven  tini^  i"  ag  mnrli  q  fart  ^s,  jt^  |-]ip 
<;tatp  nt  h\^  rHcrp^t;r.n  Tntpni-;r^t-.  ig  a  fact.  Clift  v.  White,  12  N.  Y. 
538.  Hence  a  witness  may  be  asked  with  what  intent  he  did  a  given 
act.  Seymour  v.  Wilson,  14  N.  Y.  567.  A  man  who  buys  and  ob- 
tains possession  of  goods  on  credit,  intending  not  to  pay  for  them, 
is  then  and  there  guilty  of  fraud.  The  wrong  is  fully  completed,  and 
no  longer  exists  in  intention  merely,  and  a  cause  of  action  instantly 
accrues  thereon  in  favor  of  the  vendor  to  recover  for  the  wTong 
and  injury  sustained.  It  is  true  the  purchaser  may  afterwards  repent 
of  the  wrong  and  pay  for  the  goods,  and  the  vendor  may  never  know 
of  the  wrongful  intent.  But  this  does  not  alter  the  case  at  all  as  to 
the  original  wrong,  and  the  liability  incurred  thereby.  Of  course,  a 
mere  intention  to  commit  a  crime  or  to  do  a  wrong  is  no  ofifense ; 
but,  when  the  intention  is  coupled  with  the  doing  or  accomplishment 
of  the  act  intended,  that  moment  the  wrong  is  perpetrated,  and  the 
corresponding  liabilitv  incurred.  See  Starch  Factory  v.  Lendrum,  57 
Iowa,  582,  10  N.  W.'900,  42  Am.  Rep.  53. 

In  Stewart  v.  Emerson,  52  N.  H.  301,  where  it  was  alleged,  in 
reply  to  the  defendant's  plea  of  discharge  in  bankruptcy,  that  the 
debt  in  question  was  created  by  the  fraud  of  the  defendant.  Doe, 
J.,  in  the  course  of  a  long  and  vigorous  opinion,  used  the  following 
language,  which  is  so  apt  and  pertinent  that  we  quote  it.  He  said : 
"\\'hen  the  intent  not  to  pay  is  concealed,  the  intent  to  defraud  is 
acted  out.  The  mere  omission  of  A.  to  disclose  his  insolvency  might 
not  be  satisfactory  proof  of  a  fraudulent  intent  in  all  cases.  He  might 
expect  to  become  solvent.  He  might  intend  to  pay  all  his  creditors. 
He  might  intend  to  pay  B.,  though  unable  to  pay  others.  His  fixed 
purpose  never  to  pay  B.  is  a  very  different  thing  from  his  present 
inability  to  pay  all  or  any  of  his  creditors.  A  man  may  buy  goods, 
with  time  for  trying  to  pay  for  them,  on  the  strength  of  his  known 
or  inferred  disposition  to  pay  his  debts,  his  habits,  character,  busi- 


286  EFFECT  OF  FRAUD  ON  THE  SELLER  (Cll.  2 

ness  capacity,  and  financial  prospects,  without  his  present  solvency 
being  thought  of,  and  even  when  his  present  insolvency  is  known 
to  the  vendor.  But  who  could  obtain  goods  on  credit  with  an  un- 
concealed determination  that  they  should  never  be  paid  for?  The 
concealment  of  such  a  determination  is  conduct  which  reasonably 
involves  a  false  representation  of  an  existing  fact,  is  not  less  mate- 
rial than  a  misrepresentation  of  ability  to  pay  (Bradley  v.  Obear, 
10  N.  H.  477),  and  is  an  actual  artifice,  intended  and  fitted  to  de- 
ceive. *  *  *  An  application  for  or  acceptance  of  credit  by  a 
purchaser  is  a  representation  of  the  existence  of  an  intent  to  pay 
ut  a  future  time,  and  a  representation  of  the  nonexistence  of  an 
intent  not  to  pay.  What  principle  of  law  requires  a  false  and  fraudu- 
lent representation  to  be  express,  or  forbids  it  to  be  fairly  inferred 
from  the  act  of  purchase?  A  representation  of  a  material  fact,  im- 
plied from  the  act  of  purchase,  and  inducing  the  owner  of  goods  to 
sell  them,  is  as  efifective  for  the  vendee's  purpose  as  if  it  had  been 
previously  and  expressly  made.  If  it  is  false,  and  known  to  the  pre- 
tended purchaser  to  be  false,  and  is  intended  and  used  by  him  as  a 
means  of  converting  another's  goods  to  his  own  use  without  compen- 
sation, under  the  false  pretense  of  a  purchase,  why  does  it  not  render 
I  such  a  purchase  fraudulent?  ^^^hen  the  intent  is  to  pay,  it  is  neces- 
sarily understood  by  both  parties,  and  need  not  be  expressly  repre- 
sented as  existing.  When  the  intent  is  not  to  pay,  it  is  of  course 
concealed.  Whether  the  deceit  is  called  a  false  and  fraudulent  rep- 
resentation of  the  existence  of  an  intent  to  pay,  or  a  fraudulent  con- 
cealment of  the  existence  of  an  intent  not  to  pay,  the  fraud  described 
is,  in  fact,  one  and  the  same  fraud." 

Demurrer  overruled,  and  case  remitted  to  the  common  pleas  divi- 
sion for  further  proceedings. ''° 


WHITE  V.  GARDEN. 

(Court  oi  Common  Pleas,  1851.     10  C.  B.  919.) 

Trover  for  iron.     Pleas — first,  not  guilty;    secondly,  not  possessed. 

At  the  trial,  before  Jervis,  C.  J.,  at  the  sittings  in  London,  after 
the  last  term,  the  evidence  disclosed  the  following  facts : 

One  Parker,  in  August,  1850,  bought  of  the  defendants  seventy  tons 
of  iron,  paying  for  it  £83.  in  cash,  and  giving  a  bill  for  the  residue, 
ill3.  14s.,  purporting  to  be  accepted  by  one  Thomas,  a  seedsman  at 
Rochester.  Parker  afterwards  sold  the  iron  to  the  plaintifif,  to  whom 
it  was,  by  Parker's  order,  delivered  by  the  defendants. 

On  the  1st  of  October,  Parker  made  a  further  purchase  of  fifty 
tons  of  iron  from  the  defendants,  for  which  he  gave  them  a  bill  also 

70  But  see  Smith  v.  Smith,  21  Pa.  367,  60  Axn.  Dec.  51  (1853) ;  Da  we  v. 
Morris,  149  Mass.  188.  21  N.  E.  313,  4  L.  R.  A.  158,  14  Am.  St.  Rep.  404  (1889) ; 
\Yilliston,  Sales,  §  637. 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  287 

purporting  to  be  accepted  by  Thomas.  This  second  parcel  of  iron 
was  Hkewise  sold  by  Parker  to  the  plaintiff,  and  was  forwarded  to  the 
plaintiff's  wharf  on  the  4th  of  October,  by  one  Riddell,  the  defend- 
ants' lighterman,  pursuant  to  a  delivery  order  signed  by  Parker  on 
the  3d.  The  barge  containing  the  fifty  tons  was  left,  with  the  delivery 
order  by  Riddell,  alongside  the  plaintiff's  wharf  to  be  unloaded.  Sub- 
sequently, the  defendants,  having  discovered  that  the  supposed  ac- 
ceptor of  the  bills  was  a  fictitious  person,  and  that  they  had  been 
defrauded,  sent  Riddell  to  the  plaintiff's  wharf  to  get  back  the  iron. 
Riddell  accordingly  took  away  the  lighter,  with  twenty-nine  tons  of 
the  iron  which  remained  therein :  and  the  defendants  gave  the  plain- 
tiff notice  of  the  fraud,  and  desired  him  not  to  part  with  any  of  the 
iron  in  his  possession  purchased  of  Parker. 

The  purchases  were  bona  fide  on  the  part  of  the  plaintiff,  and  had 
been  made  at  the  fair  market  price,  and  through  the  intervention  of 
a  broker. 

It  appeared  that  Parker  had  given  the  defendants  a  false  address : 
but  it  did  not  appear  that  the  defendants  had  made  any  inquiry  either 
about  him  or  the  acceptor  of  the  bills,  until  after  the  iron  had  been 
sent  by  them  to  the  plaintiff's  wharf. 

On  the  part  of  the  defendants,  it  was  insisted,  that,  the  transaction 
being  a  fraud  on  the  part  of  Parker,  no  property  in  the  iron  passed 
to  him,  and  consequently  none  could  be  acquired  by  his  vendee,  though 
no  party  to  the  fraud. 

For  the  plaintiff,  it  was  submitted,  that  the  right  in  the  original 
vendors  to  rescind  the  sale,  was  at  an  end  when  the  goods  had  come 
to  the  hands  of  a  bona  fide  purchaser  for  value. 

The  lord  chief  justice  left  four  questions  to  the  jury — first,  whether 
the  plaintiff  had  purchased  the  iron  from  Parker,  bona  fide ;  secondly, 
whether  there  had  been  a  delivery  of  the  iron  by  the  defendants  to 
the  plaintiff;  thirdly,  whether  Parker  had  obtained  the  iron  animo 
furandi;  fourthly,  whether  he  had  obtained  it  by  fraud.  The  jury 
answered  the  first  two  questions  in  the  affirmative,  and  the  third  in 
the  negative :  but,  as  to  the  fourth,  they  said  they  could  not  agree 
in  finding  fraud,  though  they  were  all  of  opinion  that  Parker  never 
intended  to  pay  for  the  iron. 

His  lordship  thereupon  directed  a  verdict  to  be  entered  for  the  plain- 
tiff, for  £75.,  the  value  of  the  twenty-nine  tons  of  iron  removed  from 
alongside  the  plaintiff's  wharf, — leave  being  reserved  to  the  defend- 
ants to  move  to  enter  a  verdict  for  them,  if  the  court  should  be  of 
opinion  that  no  property  in  the  iron  passed  by  the  sale  from  Parker 
to  the  plaintiff. 

Cresswe;ll,  J.  I  am  of  opinion  that  this  rule  must  be  discharged. 
It  appears  that  the  plaintiff  made  a  contract  with  Parker  for  the  pur- 
chase of  fifty  tons  of  iron.  It  may  be  very  doubtful  whether  Parker 
had  the  iron  at  the  time.     But  afterwards  (or  before,  as  the  case  may 


\ 


\ 


288  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

be)  he  purchased  fifty  tons  of  iron  from  the  defendants,  giving  them 
in  payment  a  bill  purporting  to  be  accepted  by  a  supposed  seedsman 
at  Rochester.  It  turned  out  that  that  was  a  fictitious  bill;  no  such 
person  as  that  described  as  the  acceptor  being  to  be  found  at  Roches- 
Iter.  The  transaction  on  the  part  of  Parker  was  altogether  fraudulent. 
Having  thus  by  fraud  induced  the  defendants  to  trust  him,  Parker 
I  sells  the  iron  to  the  plaintiff,  and  gives  him  a  delivery  order,  which 
is  acted  upon  by  the  defendants,  who  send  the  iron  to  the  plaintift''s 
wharf  by  their  own  lighterman.  Having  received  the  iron  alongside 
his  wharf,  the  plaintiff'  pays  Parker  for  it;  and  the  defendants  after- 
wards, having  in  the  interim  discovered  that  they  had  been  defrauded, 
seize  the  iron. 

I     The  question  is,  whether  the  plaintiff',  who  it  is  admitted  acted  bona 
fide,  by  this  purchase  obtained  a  property  in  the  iron.    It  seems  to  me 
that  the  case  of  Parker  v.  Patrick,  as  explained  in  Load  v.  Green, 
well  warrants  us  in  discharging  this  rule.     Parke,  B.,  there  says  that 
that  case  may  be  supported  on  the  ground  that  the  transaction  is  not 
absolutely  void,  except  at  the  option  of  the  seller;   that  he  may  elect 
to  treat   it  as  a  contract,   and  he  must  do  the  contrary  before  the 
buyer  has  acted  as  if  it  were  such,  and  re-sold  the  goods  to  a  third 
party;   and  that  Wright  v.  Lawes  is  an  authority  to  the  same  eff'ect. 
I  think  it  is.    And  I  see  no  difficulty  or  hardship  in  so  deciding.    One 
.of  two  innocent  parties  must  suffer:    and  surely  it  is  more  just  that 
/the  burthen  should  fall  on  the  defendants,  who  were  guilty  of  negli- 
gence in  parting  with  their  goods  upon  the  faith  of  a  piece  of  paper 
'which  a. little  inquiry  would  have  shown  to  be  worthless,  rather  than 
upon  the  plaintiff',  who  trusted  to  the  possession  of  the  goods  them- 
selves.   Though  Parker  could  not  have  enforced  the  contract,  I  see  no 
reason  why  the  plaintiff  should  not. 
Rule  discharged.^ ^ 


SALTUS  v.  EVERETT. 

(Court  for  the  Correction  of  Errors  of  New  York,  1S38.    20  Wend.  267, 
32  Am.  Dec.  541.) 

Error  from  the  Supreme  Court. 

Everett  brought  an  action  of  trover  in  the  superior  court  of  law  of 
the  city  of  New- York  against  IMessrs.  Saltus,  for  a  quantity  of  lead. 
In  August,  1825,  Bridge  &  Vose,  merchants  at  New-Orleans,  shipped 
179  pigs  of  lead  on  board  the  brig  Dove,  of  which  William  Collins 
was  master,  consigned  to  jNIessrs.  Tufts,  Eveleth,  &  Burrell,  of  New- 
York,  on  account  and  risk  of  Otis  Everett,  the  plaintiff,  to  whom  they 
were  referred  for  instructions.  The  Dove  put  into  Norfolk  in  distress, 
and  part  of  the  lead  was  sold  to  pay  expenses,  and  the  residue  was 

71  Concurring  opinions  were  rendered  by  Williams  and  Talfourd,  J  J.,  and 
Jervis.  C.  J. 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  289 

transferred  in  December,  1825,  by  an  agent  of  Capt.  Collins,  to  the 
schooner  Dusty  Miller,  Captain  Johnson,  who  signed  a  bill  of  lading, 
acknowledging  the  lead  to  have  been  shipped  by  F.  M.,  agent  for  Wil- 
liam Collins,  and  promising  to  deliver  the  same  in  New- York,  to  or- 
der, on  payment  of  freight.  The  Dusty  Miller  met  with  a  disaster  on 
her  voyage  to  New- York,  and  on  her  arrival  there,  the  lead,  by  the 
order  of  Capt.  Collins,  was  delivered  to  the  firm  of  Coffin  &  Cart- 
wright,  who  paid  the  freight,  and  $72.87,  the  average  contribution, 
charged  upon  the  lead,  for  the  loss  occasioned  by  the  disaster  to  the 
Dusty  Miller.  On  the  9th  March,  1826,  Coffin  &  Cartwright  sold  the 
lead  to  the  Messrs.  Saltus,  the  defendants,  for  $542.74,  and  received 
payment.  The  freight  of  the  lead  from  New-Orleans  to  New- York, 
amounted  to  $14.72. 

Everett  brought  an  action  against  Coffin  &  Cartwright,  to  recover 
the  value  of  the  lead,  but  was  nonsuited,  in  failing  to  prove  that  be- 
fore suit  brought,  he  offered  to  pay  the  freight,  average  and  charges 
to  which  the  lead  was  liable,  and  which  had  been  advanced  by  Messrs. 
Coffin  &  Cartwright,  and  this  court,  on  application,  refused  to  set  aside 
the  nonsuit.  (See  6  Wendell,  603.)  In  October,  1831,  the  plaintiff 
demanded  the  lead  of  the  Messrs.  Saltus,  and  offered  to  pay  any  law- 
ful demands  they  had  on  the  same ;  to  which  they  answered,  that 
they  would  have  no  further  communication  on  the  subject.  It  was 
proved  that  in  March,  1826,  one  of  the  firm  of  Tufts,  Eveleth,  & 
Burrell  demanded  of  the  Messrs.  Saltus,  the  lead,  or  its  value,  and 
received  for  answer,  that  they  had  bought  the  lead,  and  paid  for  it, 
and  would  not  do  anything  about  it.  Upon  this  evidence  the  plaintiff 
was  again  nonsuited.  Whereupon  he  sued  out  a  writ  of  error,  remov- 
ing the  record  into  the  supreme  court,  where  the  judgment  of  the  su- 
perior court  was  reversed.  See  opinion  delivered  in  the  supreme  court. 
(15  Wendell,  475,  et  seq.)  The  defendants  then  removed  the  record 
into  this  court. 

Senator  Verplanck.'^  *  ^'  *  The  main  question  depends  up- 
on and  involves  the  general  rule  that  ought  to  govern,  between  the 
conflicting  rights  of  bona  fide  purchasers  of  personal  property,  boughti 
without  notice  of  any  opposing  claim,  and  those  of  the  original  own-j 
er,  divested  of  the  possession  or  control  of  his  property  by  accident, 
mistake,  fraud,  or  misplaced  confidence.  The  original  owner  now 
claims  his  lead  against  purchasers  who  bought  for  a  fair  price,  in  the 
usual  course  of  trade,  from  persons  holding  the  usual  evidence  of  such 
property,  (a  bill  of  larli^ip^  pnr^r.rcpri  tp  them,)  and  in  actual  possession 
of  the  goods.  Of  these  two  innocent  parties,  which  of  the  two  is  to 
bear  the  loss  arising  from  the  wrong  doing  of  the  third? 

The  universal  and  fundamental  principle  of  our  law  of  personal 
property,  is,  that  no  man  can  be  divested  of  his  property  without  his 

7  2  Part  of  the  opinion  is  omitted. 
Woo  Dw.  Sales — 19 


/ 


/ 


290  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

own  consent;  and,  consequently,  that  even  the  honest  purchaser  un- 
der a  defective  titk  cannot  hold  against  the  true  proprietor.  That  "no 
one  can  transfer  to  another  a  better  title  than  he  has  himself ;"  is  a 
maxim,  says  Chancellor  Kent,  "alike  of  the  common  and  the  civil  law, 
and  a  sale,  ex  vi  termini,  imports  nothing  more  than  that  the  bona 
fide  purchaser  succeeds  to  the  rights  of  the  vendor."  The  only  ex- 
ception to  this  rule  in  the  ancient  English  jurisprudence  was,  that  of 
sales  in  markets  overt,  a  custom  which  has  not  been  introduced  among 
us.  "It  has  been  frequently  held  in  this  country  that  the  English  law 
of  markets  overt  had  not  been  adopted,  and  consequently  as  a  general 
rule,  the  title  of  the  true  owner  cannot  be  lost  without  his  consent." 
2  Kent's  Comm.  324,  and  cases  there  cited. 

To  whatever  and  however  numerous  exceptions  this  rule  of  our  law 
may  be  subject,  it  is  unquestionabl}'  the  general  and  regulating  prin- 
ciple, modified  only  by  the  absolute  necessity  or  the  obvious  policy  of 
human  affairs.  The  chief  justice  of  the  superior  court  has  said,  in  his 
opinion  on  this  case,  that  "it  must  be  conceded  that  a  purchaser  for 
a  fair  and  valuable  consideration,  in  the  usual  course  of  trade,  with- 
out notice  of  any  conflicting  claim  or  any  suspicious  circumstances  to 
awaken  inquiry,  or  to  put  him  on  his  guard,  will,  as  a  general  rule, 
be  protected  in  his  purchase,  and  unaffected  by  any  latent  claim.  But 
there  are  exceptions  to  this  rule."  Now,  I  cannot  agree  with  the 
learned  chief  justice  that  this  is  the  general  rule.  On  the  contrary,  I 
think  it  obvious  that  it  is  but  the  broad  statement  of  a  large  class  of 
exceptions  to  the  operation  of  a  much  more  general  principle,  and 
that  statement  of  exceptions,  is  subject  again  to  many  limitations.  I 
have  stated  the  general  and  governing  law ;  let  us  now  see  what  are 
precisely  the  exceptions  to  it. 

The  first  and  most  remarkable  class  of  these  exceptions  relates  to 
money,  cash,  bank  bills,  checks,  and  notes  payable  to  the  bearer  or 
M*ansferable  by  delivery,  and  in  short  whatever  comes  under  the  gen- 
eral notion  of  currency.  It  was  decided  by  Lord  Chief  Justice  Holt, 
at  an  early  period  of  our  commercial  law,  that  money  and  bills  payable 
to  bearer,  though  stolen,  could  not  be  recovered  after  they  had  passed 
into  currency ;  and  this  "by  reason  of  the  course  of  trade  which  cre- 
ates a  property  in  the  holder."  "They  pass  by  delivery  only,  and  are 
considered  as  cash,  and  the  possession  always  carries  with  it  the  prop- 
erty." Anon.,  1  Salk.  126.  A  long  series  of  decisions,  beginning  with 
Aliller  v.  Race,  1  Burr.  452,  has  now  settled  the  law,  that  possession 
of  such  paper  is  presumptive  proof  of  property,  and  that  he  who  re- 
ceived it  in  the  course  of  trade  for  a  fair  consideration,  without  any 
reason  for  just  suspicion,  can  hold  it  against  the  true  owner,  and  re- 
cover on  it  against  the  drawer,  maker,  and  other  parties,  even  if  the 
paper  had  been  stolen  from  or  lost  by  the  former  holder;  such  for- 
mer holder  retaining  all  his  original  rights  only  against  the  thief  or  the 
finder,  or  whoever  received  the  paper   from  them   under   suspicious 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  291 

circumstances.  These  decisions  have  been  argued  upon  as  authorities 
(at  least  in  the  way  of  analogy)  both  at  bar  and  in  opinions  of  the 
courts,  in  cases  involving  the  same  question  as  to  goods  or  other  mov- 
able property.  Hence,  it  was  inferred  that  goods  bought  or  received  ; 
"in  the  course  of  trade,  stand  on  the  same  footing  with  bank  notes 
or  checks  so  received."  But  an  examination  of  the  cases  will  show 
that  this  part  of  the  law  of  negotiable  paper  rests  on  grounds  quite 
peculiar  to  itself,  for  the  following  reasons : 

1.  The  protection  of  the  bona  fide  holder  of  paper,  transferable  by 
delivery,  extends  even  to  cases  where  the  paper  has  been  lost  or  stolen. 
But  it  has  been  often  decided  that  loss  by  accident,  theft,  or  robbery, 
does  not  divest  the  title  of  the  owner  of  goods,  nor  give  a  title  in  them 
to  a  fair  after  purchaser. 

2.  The  rule  is  put  by  all  the  authorities  on  the  express  and  sepa- 
rate ground  of  the  necessity  of  sustaining  the  credit  and  circulation 
of  the  currency.  Thus  Lord  Chief  Justice  Hardwicke:  "No  dispute 
ought  to  be  made  with  the  holder  of  a  cash  note,  who  came  fairly  by 
it,  for  the  sake  of  currency,  to  which  discrediting  such  notes  would  be 
a  great  disturbance."  See,  too,  the  reasoning  of  Lord  Mansfield,  in 
all  cases  on  this  head  decided  before  him.  Thus,  says  he,  in  the  case 
of  a  stolen  note.  Peacock  v.  Rhodes,  2  Doug.  636 :  "An  assignee  must 
take  the  thing  assigned,  subject  to  all  the  equity  to  which  the  original 
party  was  subject.  If  this  rule  was  applied  to  bills,  it  would  stop 
their  currency."  Similar  reasons  are  assigned  for  the  same  decision 
by  American  judges. 

3.  The  analogy  between  notes  and  moveables  or  goods,  is  expressly 
denied  in  the  leading  cases  on  this  head.  Thus,  in  reply  to  an  argument 
founded  on  that,  similarity,  Lord  Mansfield  answers,  (Miller  v.  Race, 
1  Burr.  457 :)  "The  whole  fallacy  of  the  argument  rests  upon  com- 
paring bank  notes  to  what  they  do  not  resemble,  and  what  they  ought 
not  to  be  compared  to,  viz.,  goods,  or  securities,  or  documents  for 
debts.  Now,  they  are  not  goods,  nor  securities,  nor  similar  to  them ; 
they  are  treated  as  cash  to  all  purposes,"  &c. 

Setting  wholly  aside,  then,  this  part  of  the  law  as  to  cash,  bank  • 
notes,  and  bills  to  bearer,  as  founded  on  the  peculiar  necessities  of 
currency  and  trade,  and  regulated  by  decisions  and  usages  peculiar 
to  itself,  what  rules  do  we  find  to  obtain  in  other  instances  of  conflict 
between  the  rights  of  original  owners  and  those  of  fair  purchasers? 
After  a  careful  examination  of  all  the  English  cases  and  those  of  this 
state,  that  have  been  cited  or  referred  to,  I  come  to  this  general  con- 
clusion, that  the  title  of  property  in  things  movable  can  pass  from  the 
owner  only  by  his  own  consent  and  voluntary  act,  or  by  operation  of 
law ;  but  that  the  honest  purchaser  who  buys  for  a  valuable  consid- 
eration, in  the  course  of  trade,  without  notice  of  any  adverse  claim, 
or  any  circumstances  which  might  lead  a  prudent  man  to  suspect  such 
adverse  claim,  will  be  protected  in  his  title  against  the  original  owner 


292  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

n  those  cases,  and  in  those  only,  where  such  owner  has  by  his  own 

irect  vokintary  act  conferred  upon  the  person  from  whom  the  bona 

ffide  vendee  derives  title,  the  apparent  right  of  property  as  owner,  or 

of  disposal  as  an  agent.    I  find  two  distinct  classes  of  cases  under  this 

head,  and  no  more. 

I.  The  first  is,  when  the  owner,  with  the  intention  of  sale,  has  in 
any  way  parted  with  the  actual  property  of  his  goods,  with  his  own 
consent,  though  under  such  circumstances  of  fraud  or  error,  as  would 
make  that  consent  revocable,  rescind  the  sale,  and  authorize  the  re- 
covery of  the  goods  as  against  such  vendee.  But  if  the  property 
passes  into  the  hands  of  honest  purchasers,  the  first  owner  must  bear 
the  loss.  Thus,  to  take  an  instance  from  our  own  reports,  where 
goods  were  obtained  by  a  sale  on  credit,  under  a  forged  recommenda- 
tion and  guaranty,  and  then  sold  to  a  bona  fide  purchaser  in  the  cus- 
tomary course  of  trade,  the  second  buyer  was  protected  in  his  posses- 
sion against  the  defrauded  original  owner.  Alowrey  v.  Walsh,  8  Cow. 
243.  So,  again,  where  the  owner  gave  possession  and  the  apparent 
title  of  property  to  a  purchaser,  who  gave  his  worthless  note,  in  fraud- 
ulent contemplation  of  immediate  bankruptcy,  a  fair  purchase  from 
the  fraudulent  vendee  was  held  to  be  good  against  the  first  owner. 
Root  v.  French,  13  Wend.  572,  28  Am.  Dec.  482.  See,  also,  ^IcCarty 
V.  Vickery,  12  Johns.  348.  In  all  such  cases,  to  protect  the  new  pur- 
chaser, there  must  be  a  full  consent  of  the  owner  to  the  transfer  of 
property,  though  such  consent  might  be  temporary  only  obtained  by 
fraud  or  mistake,  and  therefore  revocable  against  such  unfair  first 
purchaser. 

II.  The  other  class  of  cases  in  which  the  owner  loses  the  right  of 
following  and  reclaiming  his  property  is,  where  he  has,  by  his  own 
voluntary  act  or  consent,  given  to  another  such  evidence  of  the  right 
of  selling  his  goods  as,  according  to  the  custom  of  trade,  or  the  com- 
mon understanding  of  the  world,  usually  accompanies  the  authority 
of  disposal;  or,  to  use  the  language  of  Lord  Ellenborough,  when  the 
owner  "has  given  the  external  indicia  of  the  right  of  disposing  of  his 
property."  Here  it  is  well  settled  that,  however  the  possessor  of  such 
external  indicia  may  abuse  the  confidence  of  his  principal,  a  sale  to  a 
fair  purchaser  divests  the  first  title,  and  the  authority  to  sell  so  con- 
ferred, whether  real  or  apparent,  is  good  against  him  who  gave  it. 

Thus,  the  consignee,  in  a  bill  of  lading,  is  furnished  by  his  consignor 
with  such  evidence  of  right  of  disposal,  according  to  the  custom  and 
law  of  trade,  so  that  the  bona  fide  holder  of  the  bill  endorsed  by  the 
consignee  is  entitled  to  all  the  rights  of  property  of  the  consignor  in 
those  goods,  if  bought  fairly  in  the  course  of  business,  although  the 
actual  consignee,  under  whose  endorsement  he  holds,  has  no  right  to 
the  goods  as  against  the  former  owner.  If  such  goods  were  not  paid 
for,  they  might  be  stopped  in  transitu  by  the  owner,  unless  his  con- 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  293 

signee  has  already  assigned  his  bill  of  lading;  but  that  assignment 
divests  the  owner  of  his  right  of  stoppage  against  such  assignee. 

The  famous  series  of  decisions  in  the  various  courts  in  the  case  of 
Lickbarrow  v.  Mason,  (2  T.  R.  63;  2  H.  Black,  R.  211 ;  5  T.  R.  367,) 
which  led  to  the  establishment  of  the  doctrine  of  this  qualified  nego- 
tiability of  bills  of  lading,  memorable  alike  in  legal  and  commercial 
history,  strongly  illustrates  the  whole  question  before  us.  There,  Dul- 
ler and  his  associate  judges,  trained  up  at  the  feet  of  the  great  father 
of  English  commercial  jurisprudence,  maintained  and  established  the 
law  as  we  now  hold  it,  under  the  influence  of  Mansfield's  genius  upon 
his  reasoning  and  on  his  authority,  against  those  of  Lord  Lough- 
borough and  others,  the  most  learned  law^yers  of  their  times.  All 
the  arguments  and  admissions  of  both  sides  show  how  deeply  the 
general  principle  is  rooted  in  the  law  of  England,  that  (to  use  Lord 
Loughborough's  words)  "mere  possession,  without  a  just  title,  gives 
no  property,  and  the  person  to  whom  such  possession  is  transferred 
by  delivery  must  take  the  hazard  of  the  title  of  its  author." 

It  is  only  as  an  express  exception  to  this  rule  that  it  was  maintained, 
and  finally  established,  that  the  custom  of,  merchants,  evidenced  and 
sanctioned  by  legal  decisions,  and  founded  on  those  conveniences  of 
trade,  so  admirably  stated  by  Buller,  had  compelled  the  courts  to  con- 
sider the  owner  as  giving  his  consignee  evidence  of  the  power  of  dis- 
posal, which  it  was  not  for  him  to  dispute  when  the  goods  had  fairly 
passed  into  other  hands,  on  the  faith  of  that  evidence.  But  there  is 
no  case  to  be  found,  or  any  reason  or  analogy  anywhere  suggested 
in  the  books,  which  would  go  to  show  that  the  real  owner  could  be 
concluded  by  a  bill  of  lading  not  given  by  himself,  but  by  some  third 
person,  erroneously  or  fraudulently,  as  in  this  present  case.  The 
assignment  of  the  bill  of  lading  conveys,  not  an  absolute  right  to 
goods,  but  the  right  and  title  merely  of  the  actual  consignor,  who 
alone  is  bound  by  it. 

Again :  The  owner  may  lose  the  right  of  recovering  his  goods 
against  purchasers,  by  exhibiting  to  the  world  a  third  person  as  hav- 
ing power  to  sell  and  dispose  of  them ;  and  this,  not  only  by  giving 
a  direct  authority  to  him,  but  by  conferring  an  implied  authority. 
Such  an  authority  may  be  implied  by  the  assent  to  and  ratification  of 
prior  similar  dealings,  so  as  to  hold  such  person  out  to  those  with 
whom  he  is  in  the  habit  of  trading,  as  authorized  to  buy  or  sell.  It 
may  be  inferred  from  the  nature  of  the  business  of  the  agent,  with 
fit  accompanying  circumstances.  "If  a  man,"  says  Bayley,  J.,  in  Pick- 
ering V.  Busk,  15  East,  44,  "puts  goods  into  another's  custody,  whose 
common  business  it  is  to  sell,  he  confers  an  implied  authority  to  sell," 
and  the  cause  was  decided  on  that  ground.  But  this  implied  authority 
must  arise  from  the  natural  and  obvious  interpretation  of  facts,  ac- 
cording to  the  habits  and  usages  of  business;    and  it  never  applies 


294  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

where  the  character  and  business  of  the  person  in  possession,  do  not 
warrant  the  reasonable  presumption  of  his  being  empowered  to  sell 
property  of  that  kind.  If,  therefore,  to  use  an  illustration  of  Lord 
Chief  Justice  Ellenborough,  in  the  case  just  cited,  a  person  entrusts 
his  watch  to  a  watchmaker  to  be  repaired,  the  watchmaker  is  not  ex- 
hibited to  the  world  as  an  owner  or  agent,  and  credit  is  not  given  as 
such,  because  he  has  possession  of  the  watch,  the  owner,  therefore, 
would  not  be  bound  by  his  sale.  When  these  exceptions  cease,  the 
general  rule  resumes  its  sway;  and  the  law  is  therefore  clear,  that 
an  agent,  for  a  particular  purpose,  and  under  a  limited  power,  cannot 
bind  his  principal  if  he  exceed  his  power.  "Whoever  deals  with  an 
agent  constituted  for  a  special  purpose,  deals  at  his  peril,  when  the 
agent  passes  the  precise  limits  of  his  power."  2  Kent's  Comm.  621, 
and  the  authorities  there  cited. 

Beyond  the  precise  exceptions  I  have  above  stated  I  think  our  law 
has  not  carried  the  protection  of  the  fair  vendee  against  the  defrauded 
or  unfortunate  owner.  It  protects  him  when  the  owner's  misplaced 
confidence  has  voluntarily  given  to  another  the  apparent  right  of  prop- 
erty or  of  sale.  But  if  the  owner  loses  his  property,  or  is  robbed  of 
it,  or  it  is  sold  or  pledged  without  his  consent  by  one  who  has  only 
a  temporary  right  to  its  use  by  hiring,  or  otherwise,  or  a  qualified  pos- 
session of  it  for  a  specific  purpose,  as  for  transportation,  or  for  work 
to  be  performed  on  it,  the  owner  can  follow  and  reclaim  it  in  the 
hands  of  any  person,  however  innocent.  Among  the  numerous  cases 
to  this  effect,  I  will  cite  only  that  of  Hoare  v.  Parker,  2  T.  R.  376, 
which  I  select  not  only  on  account  of  the  strong  and  unhesitating  man- 
ner of  the  decision,  but  because  it  was  pronounced  by  the  very  judges 
who,  in  the  case  of  Lickbarrow  v.  Mason,  had  carried  the  protection 
of  a  bona  fide  purchaser  under  a  bill  of  lading  far  beyond  the  rigor 
of  the  ancient  law.  There,  plate  had  been  pawned  by  a  widow  who 
had  only  a  life  interest  in  it  under  her  husband's  will,  of  which  fact 
the  pawnee  had  no  notice.  It  was  not  doubted  that  the  lien  for  the 
moneys  advanced  on  such  pledge  was  void  against  the  remainderman, 
after  the  widow's  death.  "Per  curiam :  This  point  is  clearly  settled, 
and  the  law  must  remain  as  it  is,  until  the  legislature  think  fit  to  pro- 
vide that  the  possession  of  such  chattels  is  proof  of  ownership." 

In  order  to  decide  in  such  conflicts  between  the  claims  of  equally 
meritorious  sufferers  by  the  wrong  of  a  third  party,  public  policy  must 
draw  an  arbitrary  line  somewhere,  and  the  greatest  merit  of  such  a 
rule  must  be  its  certainty  and  uniformity. 

The  rule  of  our  law,  as  I  understand  it,  is  perfectly  consistent  with 
the  equity  between  the  parties,  as  far  as  such  equity  can  apply;  and 
it  serves  the  great  interests  of  commerce,  in  a  state  of  such  extensive 
foreign  and  domestic  trade  as  ours,  by  protecting  the  property  of  the 
stranger,  as  well  as  of  our  own  citizens,  against  the  possible  frauds  of 
carriers  by  sea,  or  by  internal  transportation,  whilst  it  throws  upon 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  205 

the  resident  merchant  the  responsibility  of  taking  care  with  whom 
he  deals,  and  teaches  him  a  lesson  of  wholesome  caution.  It  is  no 
mean  proof  of  the  wisdom  of  the  rule,  that  it  agrees  in  substance  with 
the  provisions  of  the  Napoleon  Code. 

The  Code,  like  our  law,  holds  as  a  general  rule,  that  the  sale  of 
goods  by  any  but  the  true  holder,  is  a  nullity ;  "La  vente  de  la  chose 
d'autrui  est  nulle."  Code  Civil  III.  art.  1599.  It  confines  the  au- 
thority of  the  special  agent  or  mandataire  to  the  strict  limits  of  his 
power ;  and  in  sales,  the  power  must  always  be  special  and  express. 
Code  Civil,  art.  1989.  It  allows  the  right  of  revendication  or  stop- 
page in  transitu  against  the  insolvent  or  fraudulent  purchaser  or  con- 
signee; but  that  right  ceases,  as  with  us,  against  the  consignee,  when 
the  goods  have  been  fairly  sold  according  to  the  bills  of  lading ;  "ven- 
dues sans  fraude  sur  factures  et  connaissements."  Code  de  Commerce, 
Liv.  III.,  art.  576,  577,  578. 

The  Scotch  law,  as  I  gather  from  Bell's  Commentaries,  lays  down 
a  different  rule,  that  "a  purchaser,  in  the  course  of  trade,  should 
be  protected  in  the  purchase  of  goods  from  any  one  who  has  them 
in  lawful  possession."  This  agrees  with  the  doctrine  of  our  su- 
perior court,  and  might  be  a  safe  enough  rule  if  generally  adopted 
and  understood.  But  it  is  not  the  rule  of  our  own  law,  which  is  per- 
haps quite  as  wise,  as  well  as  certainly  founded  on  a  much  larger 
and  wider  commercial  experience. 

Let  us  apply  these  conclusions  to  the  present  case.  Collins,  the  per- 
son whose  sale  it  is  asserted  must  divest  the  original  owner  of  his 
rights  in  favor  of  the  bona  fide  purchaser,  stands,  it  is  said  by  the 
superior  court,  in  a  double  relation  of  "a  master,  who  is  at  the  same 
time  the  consignee  of  the  goods,  and  who  himself  filled  the  character 
of  shipper,  and  has  therefore  an  undoubted  power  to  sell,  and  his  bona 
fide  transfer  will  be  effectual  to  purchasers  against  any  secret  trust 
for  others  with  which  his  apparent  title  might  be  affected."  Had  the 
lead  been  consigned  to  Collins  from  the  intermediate  port,  by  the  own- 
er or  his  agent,  this  would  be  true.  But  it  is  shipped  by  Myers,  of 
whom  neither  the  owner,  nor  any  one  with  full  power  to  represent 
him  in  this  matter,  had  any  knowledge  as  an  agent,  and  under  whose 
care  the  vessel  and  cargo  were  placed  by  Collins,  so  that  he  appeared 
only  as  his  representative,  and  thus  he  styles  himself  in  the  bill  of 
lading. 

The  plaintiff  below  comes  in  no  wise  within  the  rule  I  have  stated. 
He  has  neither  given  to  Collins  documentary  and  mercantile  evidence 
of  property  in  a  bill  of  lading  from  himself  or  his  own  agent  with 
competent  power,  nor  the  evidence  customary  in  business,  such  as 
to  hold  him  out  as  an  agent  authorized  to  change  the  title  of  his  prop- 
erty in  his  goods.  The  assumed  authority  of  shipping  goods  in  his 
own  name  and  to  his  own  order,  at  Norfolk,  and  the  documentary 
evidence  of  it  in  the  bill  of  lading,  can  have  no  more  effect  as  to  the 


296  EFFECT  OF  FRAI'D  OX  THE  SELLER  (Ch.  2 

title  of  the  property,  than  if  he  had  forged  such  a  bill  of  lading  at 
New  Orleans. 

Neither  does  the  selection  of  a  ship  and  its  master  vest  in  the  mas- 
ter any  implied  authority  to  sell  the  ship,  or  any  part  of  her  cargo. 
His  business  is  to  carry  the  goods,  and  no  more,  with  some  other 
clearly  defined  and  very  limited  powers,  to  be  exercised  only  in  cases 
of  absolute  necessity.  He  stands  in  the  same  legal  relation  to  his 
cargo  with  the  watchmaker,  in  the  case  supposed  by  Lord  EUenbor- 
ough,  who  has  in  his  hands  a  watch  to  be  repaired.  He  is  not  ex- 
hibited to  the  world  as  the  owner,  or  agent  for  selling:  and  if  he 
does  sell  it,  the  sale  is  void  against  the  true  proprietor. 

The  law  of  shipping  is  well  known  to  the  commercial  world,  to 
declare  that  the  master  has  no  authority  to  sell  the  cargo,  or  any  part 
of  it,  unless  under  circumstances  of  pressing  necessity  abroad;  and 
of  that  absolute  necessity,  the  burden  of  proof  rests  on  the  purchas- 
er, and  the  presumption  is  against  it.  As  Judge  Bayley  states  the  law, 
(Morris  v.  Robinson,  3  Barn.  &  Cress.  196,)  "The  captain  has  no  right 
to  act  as  agent  for  the  owner  of  the  goods,  unless  in  absolute  neces- 
sity. The  purchaser  obtains  no  property  by  the  act  of  his  professing 
to  sell."  And  this  was  held  where  the  master  acted  in  perfect  good 
faith.  How  much  stronger  is  the  case  of  a  probable  fraud!  Thus 
again,  in  Freeman  v.  East  India  Co.,  5  Barn.  &  Aid.  619,  Abbott,  C. 
J.,  says,  "a  sale  of  a  cargo,  or  any  part  of  it,  by  the  master,  can  con- 
fer no  title,  unless  there  was  an  absolute  necessity;"  and  the  reason 
of  the  rule  is  thus  assigned  by  Judge  Best  in  the  same  case :  "A  car- 
rier by  sea  and  by  land  stands  in  the  same  relation  to  the  owner  of 
goods  to  be  carried.  Their  duty  is  to  carry  the  goods,  and  the  au- 
thority only  such  as  is  necessary.  The  purchaser,  knowing  that  neces- 
sity alone  can  justify  the  sale,  and  give  him  a  title  to  what  he  buys, 
will  assure  himself  that  there  is  a  real  necessity  for  the  sale  before 
he  makes  the  purchase ;  and  caution  on  his  part  will  prevent  what  has 
frequently  happened,  the  fraudulent  sale  of  ships  and  cargoes  in  for- 
eign ports." 

Such,  then,  being  the  well-settled  and  generally  known  law,  the  se- 
lection of  a  master  or  any  other  carrier,  by  sea  or  land,  does  nothing 
to  exhibit  such  a  carrier  to  tlje  world  as  having  the  power  of  dispos- 
ing of  the  goods  he  carries.  The  owner  does  nothing  to  enable  him 
to  commit  a  fraud  on  third  persons.  He  gives  merely  a  qualified  pos- 
session, and  if  that  is  turned  into  an  assumed  right  of  ownership,  it 
is  tortious  conversion,  and  will  not  divest  the  owner's  title. 

It  is  true  that  the  rule  will  sometimes,  as  was  urged  by  Chief  Jus- 
tice Jones,  "involve  purchasers  in  great  perils ;"  but  that  peril  can 
scarcely  be  called  "unreasonable,"  since  there  is  a  reason  of  public 
policy  of  at  least  equal  weight  to  counterbalance  this  inconvenience. 
It  is  the  same  which  is  the  ground  of  the  absolute  prohibition  to  a 
master  or  carrier  to  sell  the  goods  he  transports  except  under  insur- 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  297 

mountable  necessity;  it  is  to  prevent,  in  the  language  of  the  court  in 
the  case  just  quoted,  (5  Barn.  &  Aid.  623,)  "fraudulent  sales  of  ships 
and  cargoes  in  foreign  ports."  Now  the  fraudulent  consignments  or 
change  of  the  apparent  evidence  of  property  for  the  purpose  of  sell- 
ing elsewhere,  is  but  another  form  of  the  same  evil.  I  may  add  that 
this  same  rule,  however  rigid  and  occasionally  hard  in  its  operations 
is  no  small  safeguard  to  the  protection  of  the  owner's  rights  in  goods 
and  other  property,  in  active  commerce  necessarily  placed  under  the 
temporary  control,  and  in  the  legal  though  qualified  possession  of 
agents,  sailors,  carriers,  boatmen,  servants,  and  clerks,  as  well  as  of 
those  who  may  have  them  stored  for  safe  keeping,  and  their  clerks, 
porters,  and  servants.  *  *  * 
Judgment  unanimously  affirmed. ^^ 


BARNARD  et  al.  v.  CAMPBELL  et  al. 
(Court  of  Appeals  of  New  York,  1874.     55  N.  Y.  456,  14  Am.  Rep.  2S9.) 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  First  Judicial  Department,  reversing  a  judgment  in  favor  of 
plaintiffs  and  granting  a  new  trial. 

This  was  an  action  of  replevin  to  recover  possession  of  1,370  bags 
of  linseed. 

Defendants,  who  were  merchants  in  New  York,  had,  prior  to  Au- 
gust 21st,  1863,  been  negotiating  with  one  E.  P.  Jeffries,  of  Boston, 
for  the  purchase  of  a  quantity  of  linseed ;  the  negotiations  were  closed 
on  the  twenty-first,  by  a  sale  of  Jeffries,  through  his  broker  in  New 
York,  of  L800  bags.  Pursuant  to  the  terms  of  sale,  defendants,  on 
the  same  day,  mailed  to  Jeffries  their  notes  for  the  seed  purchased, 
which  were  received  by  him  and  immediately  pledged  as  collateral 
for  a  loan.  During  these  negotiations,  Jeffries  had  been  negotiating 
with  plaintiffs,  at  Boston,  for  the  purchase  of  linseed,  and  on  the 
twenty-first  contracted  for  1,800  bags.  It  was  disputed  upon  the 
trial  whether  the  sale  was  to  be  for  cash  or  upon  a  ten  days'  credit. 
On  the  twenty-fourth  of  August,  plaintiffs,  induced  by  fraudulent 
representations  upon  the  part  of  Jeft'ries,  delivered  to  him  an  order  for 
1,370  bags,  which  were  delivered  to  him  and  shipped  to  defendants. 
A  bill  of  lading  taken  deliverable  to  them,  which  was  forwarded  by 
mail  on  the  twenty-fifth.  Jeffries  failed  on  the  twenty-seventh.  On 
the  arrival  of  the  seed  in  New  York,  it  was  demanded  by  plaintiffs. 

Further  facts  appear  in  the  opinion. 

Allen,  J.  The  only  question  involved  in  the  action  is,  whether  the 
plaintiffs  and  original  owners,  or  the  defendants,  the  purchasers  from 
Jeffries,  the  fraudulent  vendee  of  the  plaintiffs,  have  the  better  title 

73A  concurring  opinion  was  delivered  by  Chancellor  Walworth. 


298  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

to  the  merchandise  in  controversy.  That  as  against  Jeffries,  the  right 
of  the  plaintiffs  to  rescind  the  sale  and  reclaim  the  goods,  by  reason 
of  the  fraud  of  the  latter,  is  perfect,  is  conceded,  and  was  so  held  up- 
on the  trial.  Such  right  continues  as  against  any  one  acquiring  title 
under  Jeft'ries,  unless  under  well-recognized  principles  of  law,  and  un- 
der the  circumstances  of  this  case  Jeffries  could  transfer  a  better 
title  than  he  had,  or  the  plaintiffs  by  their  acts  are  estopped  from  as- 
serting title  as  against  a  purchaser  from  him. 

But  two  questions  of  fact  were  submitted  to  the  jury:  1.  Whether 
the  sale  to  Jeffries  was  for  cash  or  upon  credit;  and,  2.  If  for  cash, 
whether  payment  was  waived  and  the  goods  delivered  so  as,  but  for 
the  fraud,  to  vest  the  property  in  Jeffries. 

The  jury  found,  either  that  the  sale  was  upon  credit,  or  that  the 
payment  of  the  purchase-price,  as  a  condition  precedent  to  the  delivery 
of  the  property  to  and  the  vesting  of  the  title  in  Jeffries  was  waived, 
and  that  the  delivery  to  him  was  absolute  and  unconditional ;  and  the 
defendants  had  a  verdict,  under  the  instructions  of  the  judge,  that 
the  equitable  rule  applied,  that  when  one  of  two  innocent  parties  must 
suffer  loss  by  reason  of  the  fraud  or  deceit  of  another,  the  loss  shall 
fall  upon  him  by  whose  act  or  omission  the  wrong- doer  has  been  en- 
abled to  commit  the  fraud ;  and  that  the  plaintiffs  were  in  the  position 
of  a  party  who  lets  another  have  property  unconditionally,  and  there- 
by enables  him  to  sell  the  same  and  receive  the  purchase-price  from  a 
third  person ;  and  that  in  such  case  the  purchaser  takes  the  title.  In 
other  words,  the  plaintiffs  were  held  to  be  estopped  from  claiming 
the  goods  from  the  defendants  in  case  the  jury  found  that  there  had 
been  an  unconditional  delivery  by  the  plaintiffs  to  Jeffries,  notwith- 
standing as  the  judge  at  the  circuit  expressly  declared,  and  as  the 
evidence  showed,  the  defendants  purchased  the  goods  from  a  broker 
of  Jeffries  in  New  York  on  the  21st  of  August,  and  paid  for  them  the 
same  day  by  transmitting  their  notes  to  Jeffries  at  Boston,  who  at 
once  negotiated  them;  and  Jeffries  obtained  neither  the  property  nor 
any  order  for  its  delivery,  or  documentary  evidence  of  title  or  of  his 
purchase,  until  the  24th  of  the  same  month,  three  days  after  the  trans- 
action was  consummated  as  between  Jeffries  and  the  defendants. 
That  is,  it  was  held  at  the  circuit  that  the  subsequently-acquired  pos- 
session of  Jeffries  operated  by  relation  to  create  an  estoppel  as  of  the 
21st  of  August,  in  favor  of  the  defendants  and  against  the  plaintiffs; 
and  the  jury  were  in  terms  instructed  that  the  defendants  were  pur- 
chasers in  good  faith  for  value,  and  acquired  a  title  paramount  to  that 
of  the  plaintiffs,  and  were  entitled  to  a  verdict ;  and  they  had  a  verdict 
and  judgment  upon  this  view  of  their  rights. 

/  That  the  defendants  were  purchasers  in  good  faith,  that  is,  without 
i|otice  or  knowledge  of  the  fraud  of  Jeffries,  or  of  the  defects  in  his 
title,  for  a  full  consideration  actually  paid  to  Jeffries,  is  not  disputed. 
Both  plaintiffs  and  defendants  are  alike  innocent  of  any  dishonest  or 
fraudulent  intent,  and  one  or  the  other  must  suffer  loss  by  the  frauds 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  299 

of  one  with  whom  they  dealt  in  good  faith,  for  legitimate  purposes, 
and  with  honest  intention.  Both  were  alike  the  victims  of  the  same 
fraudulent  actor,  and  if  one  rather  than  the  other  of  the  parties  has 
done  any  act  enabling  the  fraud  to  be  committed,  and  without  which  it 
could  not  have  been  perpetrated  upon  the  other  in  the  exercise  of  or- 
dinary care  and  discretion,  the  loss  should,  within  the  rule  before  re- 
ferred to,  fall  on  that  one  of  the  parties  aiding  and  abetting  the  fraud, 
or  enabling  it  to  be  committed.  But  good  faith,  and  a  parting  of 
value  by  the  one,  will  not  alone  determine  who  should  have  the  loss, 
or  fix  the  ownership  of  the  property  fraudulently  purchased  from  the 
one  and  sold  to  the  other.  The  general  rule  is  that  a  purchaser  of 
property  takes  only  such  title  as  his  seller  has,  and  is  authorized  to 
transfer ;  that  he  acquires  precisely  the  interest  which  the  seller  owns, 
and  no  other  or  greater.  "Nemo  plus  juris  ad  alium  transferre  potest 
quam  ipse  habet."  Broom  Leg.  Max.  452.  The  general  rule  of  law 
is  undoubted  that  no  one  can  transfer  a  better  title  than  he  himself 
possesses.  "Nemo  dat  quod  non  habet."  Per  Willes,  J.,  Whistler  v. 
Forster,  14  C.  B.  (N.  S.)  248.  To  this  rule  there  are  however  some 
exceptions,  and  unless  the  defendants  are  within  the  exceptions  they 
must  abide  by  the  title  of  Jeffries.^* 

The  defendants  can  only  resist  the  claim  of  the  plaintiffs  to  the 
merchandise  by  establishing  an  equitable  estoppel,  founded  upon  the 
acts  of  the  plaintiffs,  and  in  the  application  of  the  rule  applied  by 
the  judge  at  the  circuit,  by  which,  as  between  two  persons  equally 
innocent,  a  loss  resulting  from  the  fraudulent  acts  of  another  shall 
rest  upon  him  by  whose  act  or  omission  the  fraud  has  been  made 
possible.  This  rule,  general  in  its  terms,  only  operates  to  protect 
those  who,  in  dealing  with  others,  exercise  ordinary  caution  and  pru- 
dence, and  who  deal  in  the  ordinary  way  and  in  the  usual  course  of 
business  and  upon  the  ordinary  evidences  of  right  and  authority  in 
those  with  whom  they  deal,  and  as  against  those  who  have  volunta- 
rily conferred  upon  others  the  usual  evidences  or  indicia  of  ownership 
of  property,  or  an  apparent  authority  to  deal  with  and  dispose  of  it. 
In  such  case,  for  obvious  reasons,  the  law  raises  an  equitable  estop- 
pel, and  as  against  the  real  owner,  declares  that  the  apparent  title 
and  authority  which  exists  by  his  act  or  omission  shall  quoad  persons 
acting  and  parting  with  value  upon  the  faith  of  it,  stand  for  and  be 
regarded  as  the  real  title  and  authority.  It  is  not  every  parting  with 
the  possession  of  chattels  or  the  documentary  evidence  of  title  that 
will  enable  the  possessor  to  make  a  good  title  to  one  who  may  purchase 
from  him.  So  far  as  such  a  parting  with  the  possession  is  necessary 
in  the  business  of  life,  or  authorized  by  the  custom  of  trade,  the  owner 
of  the  goods  will  not  be  affected  by  a  sale  by  the  one  having  the  cus- 
tody and  manual  possession.     Dyer  v.  Pearson,  3  B.  &  C.  38;  New- 

7  4  The  court  here  considered  the  exceptions  of  negotiable  paper,  bills  of 
lading,  and  sales  in  market  overt. 


\ 


300  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

som  V.  Thornton,  6  East,  17;  Dayton  v.  Kynne,  3  B.  &  A.  320;  Bal- 
lard V.  Burgett,  40  N.  Y.  314.  But  the  owner  must  go  farther,  and 
do  some  act  of  a  nature  to  mislead  third  persons  as  to  the  true  posi- 
tion of  the  title.     Pickering  v.  Busk,  15  East,  38. 

Two  things  must  concur  to  create  an  estoppel  by  which  an  owner 
may  be  deprived  of  his  property,  by  the  act  of  a  third  person,  without 
his  assent,  under  the  rule  now  considered.  1.  The  owner  must  clothe 
Vthe  person  assuming  to  dispose  of  the  property  with  the  apparent  title 
:o,  or  authority  to  dispose  of  it;  and  2.  The  person  alleging  the  es- 
;oppel  must  have  acted  and  parted  with  value  upon  the  faith  of  such 
ipparent  ownership  or  authority,  so  that  he  will  be  the  loser  if  the 
appearances  to  which  he  trusted  are  not  real.  In  this  respect  it  does 
not  differ  from  other  estoppels  in  pais.  Weaver  v.  Barden,  49  N.  Y. 
286;  McGoldrick  v.  Willets,  52  N.  Y.  612;  City  Bank  v.  R.,  W.  &  O. 
R.  Co.,  44  N.  Y.  136:  Saltus  v.  Everett.  20  Wend.  267,  32  Am.  Dec. 
541 ;  Wooster  v.  Sherwood,  25  N.  Y.  278;  Brower  v.  Peabody,  13  N. 
Y.   121. 

In  the  case  before  us  every  element  of  an  estoppel  is  wanting,  and 
no  case  was  made  for  the  application  of  the  rule  by  which,  under 
some  circumstances,  one,  rather  than  the  other  of  two  innocent  per- 
sons, is  made  to  bear  the  loss  occasioned  by  the  fraud  of  a  third 
person. 

The  defendants  consummated  their  purchase  from  Jeffries,  acting 
through  his  broker  in  New^  York,  and  paid  for  the  merchandise  by 
remitting,  at  his  request,  directly  to  Jeffries  on  the  21st  of  August, 
iat  which  time  Jeffries  had  neither  the  possession  nor  right  of  posses- 
ision  of  the  property,  nor  any  documentary  evidence  of  title  or  any 
/  indicia  of  ownership,  or  of  dominion  over  the  property  of  any  kind. 
The  plaintiffs  had  done  nothing  to  induce  the  defendants  to  put  faith 
in  or  give  credit  to  the  claim  of  Jeffries  of  the  right  to  sell  the  proper- 
ty. The  defendants  then  parted  with  the  consideration  for  the  pur- 
chase of  the  seed,  not  upon  the  apparent  ownership  of  Jeffries,  but 
upon  his  assertion  of  right  of  which  the  plaintiffs  had  no  knowledge, 
and  for  which  they  are  not  responsible.  Neither  did  the  defendants  at 
any  time  do  or  forbear  to  do  any  act  in  reliance  upon  the  apparent 
ownership  of  the  property  by  Jeffries,  or  induced  by  any  act  or  dec- 
laration of  the  plaintiffs.  In  Knights  v.  Wiffen,  L.  R.,  5  O.  B.  660, 
the  plaintiff  was  induced  to  rest  satisfied  under  the  belief  that  he  had 
acquired  title  to  the  property  purchased,  and  so  to  alter  his  position, 
by  abstaining  from  proceedings  to  recover  back  the  money  which  he 
had  paid  to  his  vendor,  by  the  declaration  of  the  defendant  that  it  was 
all  right,  and  his  promise  that  when  the  forwarding  note  should  be 
received  he  would  put  the  barley  on  the  line. 

The  defendants  here  at  no  time  had  any  declaration  or  statement 
of  the  plaintiffs  upon  which  to  rely,  and  were  not  led  to  act  or  for- 
bear to  act  by  any  documentary  evidence  of  title  in  Jeft'ries  emanating 
from  them.     There  is  a  manifest  equity  in  holding  the  owner  of  prop- 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  301 

erty  estopped  from  asserting  title  as  against  one  who,  for  value  ac- 
tually paid,  has  purchased  it  from  one  having,  by  the  voluntary  act  or 
negligence  of  the  owner,  the  apparent  title  with  right  of  disposal,  but 
with  this  limitation  there  is  no  hardship  in  holding  to  the  rule  that 
the  right  of  property  in  chattels  cannot  be  transferred  unless  on  the 
ground  of  authority  or  title.  Public  policy  requires  that  purchasers 
of  property  should  be  vigilant  and  cautious,  at  least  to  the  extent  of 
seeing  that  their  vendors  have  some  and  the  usual  evidence  of  title, 
and  if  they  are  content  to  rest  upon  their  declarations  they  may  not 
impose  the  loss,  which  is  the  result  of  their  own  incautiousness  or 
credulity,  on  another.  The  payment  for  or  parting  with  value  for 
the  goods  by  the  purchaser  from  the  fraudulent  vendee  lays  at  the 
foundation  of  the  estoppel,  for  if  he  has  parted  with  nothing,  he 
can  lose  nothing  by  the  retaking  of  the  goods  by  the  original  owner, 
and  that  payment  must  be  occasioned  by  the  acts  or  omissions  of  such 
owner.  It  is  the  payment  that  creates  the  estoppel,  and  if  that  is  not 
made  in  reliance  on  the  acts  of  the  owner,  the  latter  is  not  and  can- 
not, in  the  nature  of  things,  be  estopped. 

The  order  granting  a  new  trial  must  be  affirmed,  and  judgment  ab- 
solute for  the  plaintiffs.     All  concur. 

Order  affirmed  and  judgment  accordingly. 


BUTTERS  V.  HAUGHWOUT  et  al. 
(Supreme  Court  of  Illinois,  1866.     42  111.  IS,  89  Am.  Dec.  401.) 

Bri;esE,  J.''^  This  was  an  action  of  replevin,  brought  in  the  Cook 
circuit  court  by  E.  V.  Haughwout  and  others,  crockery  and  china 
ware  merchants  in  the  city  of  New  York,  against  William  A.  Butters, 
an  auctioneer  in  Chicago.  The  defendant  is  not  a  real  party  to  the 
controversy.  He  stands  in  the  attitude  of  a  mere  stakeholder.  James 
Duncan  of  the  dry  goods  house  of  Ubsdell,  Pearson  &  Co.,  of  St. 
Louis,  is  the  real  defendant,  who  had  sent  the  goods  in  controversy, 
with  some  others  of  his  own,  to  Butters  to  be  sold.  After  the  action 
of  replevin  was  commenced,  it  was  agreed  between  the  agent  of  the 
plaintiffs  and  Duncan,  that  all  of  the  goods  sent  by  Duncan  to  But- 
ters, should  be  sold  by  him  together,  and  the  proceeds  should  be  di- 
vided between  the  plaintiffs  and  Duncan,  in  proportion  to  their  in- 
terests. The  action  was  to  recover  the  possession  of  twenty-three 
casks  of  French  china  ware,  and  their  contents,  of  the  value  of  two 
thousand  five  hundred  dollars. 

The  pleas  were  non  cepit,  non  detinet,  and  property  in  James  Dun- 
can.    The  controversy  arises  on  the  third  plea. 

The  jury  found  a  verdict  for  the  plaintiffs.  A  motion  for  a  new 
trial  being  overruled  and  exception  taken,  judgment  was  entered  on 

7  5  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


302  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

the  verdict,  to  reverse  which  the  defendant  prosecutes  this  writ  of 
error.     *     *     * 

The  claim  of  the  plaintiffs  in  the  replevin,  was  based  upon  the  alle- 
gations of  fraudulent  representations  made  by  one  Morgan,  to  whom 
hthey  sold  the  goods,  and  a  knowledge  thereof  by  Duncan,  who  re- 
ceived them  from  Morgan  on  account  of  a  pre-existing  debt  due  by 
Morgan  to  Duncan. 

Duncan  claimed  the  goods  by  a  fair  purchase,  for  a  valuable  con- 
sideration, without  any  notice  of  any  fraud  on  the  part  of  Morgan 
in  obtaining  the  goods. 

The  only  consideration  proved,  was  a  pre-existing  debt  of  a  large 
amount,  due  by  Morgan  to  Duncan,  and  that  these  goods  were  re- 
ceived by  Duncan  on  account  of  that  indebtedness.     *     *     * 

The  counsel  for  the  defendants  in  error  contend,  that  Dimcan  could 
not  buy  the  goods  in  question  from  Morgan,  the  fraudulent  vendee, 
paying  nothing  for  them  in  the  nature  of  a  new  consideration,  but  tak- 
ing them  merely  on  account  of  a  pre-existing  indebtedness,  the  sale 
having  been  promptly  disaffirmed  by  the  defendants,  and  the  goods 
reclaimed  so  soon  as  the  fraud  was  discovered. 

Counsel  admit  that,  as  to  commercial  paper,  such  as  bills  of  ex- 
change and  negotiable  promissory  notes,  the  holder  of  such,  if  taken 
in  the  regular  course  of  business  before  due,  and  for  a  valuable  con- 
sideration, is  not  subject  to  have  his  title  questioned — that,  in  such 
case,  a  pre-existing  debt  is  a  valuable  consideration  for  the  transfer. 
But  he  says  commercial  paper,  in  the  regular  course  of  business,  is 
not  taken  upon  the  title  of  the  holder,  but  upon  the  credit  given  to  it 
by  the  policy  of  the  law,  and  although  stolen,  a  bona  fide  holder  will 
not  be  aft'ected  if  he  has  no  knowledge  of  the  theft,  and  has  acted 
with  due  caution.  He  insists  that  it  is  not  so  with  lands  or  chattels, 
they  being  taken  on  the  title  of  the  vendor.  But  he  admits  that  a 
sale  of  chattels,  effected  by  fraudulent  misrepresentations,  may  ripen 
into  a  title  in  the  vendee  so  as  to  conclude  the  vendor  by  his  acqui- 
escence, manifested  by  his  bringing  a  suit  for  the  purchase-money,  by 
lapse  of  time  with  knowledge  of  the  fraud,  or  by  a  sale  to  a  bona 
'fide  purchaser;  but  to  be  a  bona  fide  purchaser  he  must  purchase  in 
ignorance  of  the  fraud,  and  must  actually  pay  a  new  consideration, 
and  a  pre-existing  debt  is  not  such  a  new  consideration,  although  it 
is  a  valuable  consideration.  And  he  also  admits  that  there  may  be 
circumstances  which  would  entitle  a  party  claiming  as  a  bona  fide 
purchaser  to  favorable  consideration,  when  a  previous  indebtedness 
is  used  as  the  consideration,  in  whole  or  in  part,  for  the  new  purchase, 
such  as  the  surrender  of  securities,  the  cancellation  of  mortgages,  and 
the  like. 

These  admissions  by  the  defendants'  counsel  seem  to  us  to  admit 
away  their  whole  case.  If  a  pre-existing  debt  be  a  valuable  considera- 
tion for  the  purchase  and  transfer  of  personal  property,  a  most  im- 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  303 

portant  element  to  make  a  sale  valid  is  shown,  and  if  the  transaction 
be  fair  and  honest,  with  no  knowledge  of  any  fraud  on  the  part  of 
his  vendor,  what  is  wanting  to  vest  the  title  in  such  a  purchaser?  If 
a  previous  indebtedness  be  used,  in  whole  or  in  part,  as  the  considera- 
tion for  the  new  purchase,  and  that  is  a  valuable  consideration,  as  is 
admitted,  is  it  not  a  question  for  the  jury  how  this  indebtedness  was 
used ; — was  it  in  the  surrender  of  securities,  the  cancellation  of  mort- 
gages, or  the  like?  It  being  admitted  that  a  pre-existing  debt  is  a 
valuable  consideration  for  the  sale  of  goods,  in  the  absence  of  all 
knowledge  on  the  part  of  the  purchaser  of  any  fraud  on  the  part  of 
his  vendor,  the  court  should,  on  the  admission  of  the  defendant,  have 
instructed  the  jury  as  asked  by  the  plaintiff  in  error.  The  instruction 
proceeds  on  the  ground  the  goods  were  taken  from  Morgan  in  part 
payment  of  a  pre-existing  debt  due  from  him  to  Duncan,  that  they 
were  taken  in  good  faith,  and  without  any  knowledge,  on  the  part 
of  Duncan,  of  any  fraud  in  Morgan  in  obtaining  the  goods.  Whether 
or  not  Duncan  canceled  mortgages,  or  surrendered  securities  he  held 
against  Morgan,  or  discharged  other  indebtedness  in  whole  or  in  part, 
were  facts  to  be  inquired  into  by  the  jury.     *     *     * 

All  the  cases  cited  by  defendants'  counsel  hold,  that,  if  the  party 
receiving  a  note  parts  with  anything  valuable,  he  is  entitled  to  enforce 
the  payment  of  the  note,  irrespective  of  the  equities  as  between  the 
original  parties.  But  taking  it  on  a  pre-existing  debt  he  parts  with , 
nothing,  and  if  he  fails  in  his  title,  he  is  in  a  condition  no  worse  than] 
he  was  before  he  took  the  assignment;  and  the  same  is  true  of  the 
purchaser  of  goods,  he  loses  nothing  by  the  transaction,  he  has  ad- 
vanced no  new  consideration,  and  is  not  injured  if  his  title  does  not 
prevail.  This  idea  is  paramount,  and  runs  through  all  the  cases,  but 
is  mere  assumption. 

A  creditor  who  takes  goods  in  payment,  in  whole  or  in  part,  of  a 
precedent  debt,  in  good  faith,  having  no  reason  to  suspect  any  other 
claim  existing  to  the  property,  and  having  no  reason  to  doubt  his  title, 
is  lulled  into  security.  He  rests  in  the  belief  that  his  debt  is  paid, 
and,  in  that  belief,  foregoes  all  effort  to  seek  other  payment  or  se- 
curity. 

This  idea,  although  scouted  by  Woodworth,  Justice,  in  the  Case 
of  Coddington,  is,  we  think,  the  ruling  point  in  the  case.  Why,  we 
ask,  is  not  the  equity  of  such  a  person  as  strong  against  another 
claimant  as  if  he  had  paid  a  new  consideration — had  actually  counted 
out  the  dollars  in  payment?  He  would  be  in  no  worse  condition  in 
the  latter  case  than  in  the  former,  for,  in  either  case,  on  failure  of 
title,  he  could  recover  back  the  money  paid,  or  the  amount  of  the 
credit  he  had  given  on  the  pre-existing  debt,  or  the  value  of  the  se- 
curities he  had  delivered  up,  or  the  mortgage  on  which  he  had  caused 
satisfaction  to  be  entered.  This  will  not  be  denied,  so  that  the  reason 
given  for  the  doctrine  is  more  specious  than  sound. 


304  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

In  the  one  case,  if  the  title  of  the  new  claimant  is  allowed  to  pre- 
vail, the  party  taking  the  goods  on  an  antecedent  debt,  may  lo?e  a 
debt  he  would  not  have  otherwise  lost.  In  the  other  case,  he  may 
lose  the  consideration  which  he  has  paid.  He  is  liable  to  equal  injury 
in  either  case,  and,  therefore,  we  think  it  is  not  true  to  say,  that, 
when  property  is  taken  in  payment  of  a  precedent  debt,  the  party,  if 
he  loses  it,  is  in  no  worse  condition  by  being  obliged  to  surrender  it. 
At  any  rate,  it  is  a  matter  of  uncertainty  that  a  party  so  receiving 
goods  in  payment  of  a  precedent  debt,  is  in  no  worse  condition  if  they 
are  taken  from  him,  than  he  was  before  he  received  them.  If  he  loses 
a  security  he  might  have  obtained,  he  is  in  a  worse  condition.  If  his 
vendor  becomes  insolvent  after  the  credit  is  indorsed  on  his  note  or 
account,  or  his  mortgage  entered  as  satisfied  before  the  goods  are  re- 
claimed, he  is  in  a  worse  condition. 

As  commercial  paper  is  but  the  representative  of  the  property  of 
the  country,  and  good  policy  requiring  that  the  latter  should  circulate 
freely,  we  think,  if  in  the  one  case  a  pre-existing  debt  is  a  valuable 
consideration  for  the  assignment,  so  in  the  other,  the  same  considera- 
tion should  be  available  in  its  purchase,  the  element  of  good  faith 
existing  in  both  transactions.  Every  day's  experience  shows  us  that 
creditors  do  not  usually  take  property  in  payment  of  a  debt,  certainly 
not  when  the  money  can  be  had ;  what  difference  can  it  make  then,  if 
a  debtor,  having  no  money,  honestly  transfers  his  chattels  to  his  cred- 
itor to  pay  a  debt?  and  why  should  not  the  creditor  be  secure  in  the 
acquisition,  if  he  has  acted  in  good  faith,  and  is  ignorant  of  any  latent 
equities  or  prior  claim?  The  hardship,  if  there  be  any,  is  on  the  cred- 
itor, for  the  reason,  such  transactions,  however  honest  they  may  be, 
are  more  open  to  the  charge  of  fraud,  and  more  difficult  to  be  de- 
fended against  such  a  charge,  than  where  money  is  actually  paid,  but 
in  principle  we  can  perceive  no  substantial  diiference.     *     *     * 

Judgment  reversed. '^° 

76  In  Leask  v.  Scott,  2  Q.  B.  D.  .376  (1S77).  Bramwell.  L.  J.,  said:  "Prac- 
tically such  a  consideration  as  is  now  under  discussion  lias  always  a  pres- 
ent operation.  It  stays  the  hand  of  the  creditor.  If  the  plaintiff  had  agreed 
on  the  day  the  bill  of  lading  was  handed  to  him  to  give  a  week's  time,  there 
would  have  been  a  present  consideration.  *  *  *  If  in  this  case  the  plain- 
tiff had  bought  the  goods  out  and  out  and  then  been  paid  part  of  his  debt 
with  the  price,  the  consideration  would  have  safFiced,  if  the  transaction  was 
not  colorable.  If  the  plaintiff  had  said,  'I  caimot  take  this  bill  of  lading  safe- 
ly as  the  consideration  would  be  past,  do  it  with  the  broker  next  door,  and 
give  me  his  check,'  that  would  have  been  valid.  Is  it  desirable  to  introduce 
such  niceties  into  commercial  law?" 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  305 


SLEEPER  V.  DAVIS. 

(Supreme  Court  of  New  Hampshire.  1886.     64  N.  H.  59,  6  Atl.  201,  10  Am. 

St.  Rep.  377.) 

Replevin  for  goods  bought  from  the  plaintiffs  by  one  Nellie  Davis 
and  by  her  sold  to  the  defendants.  Facts  agreed.  The  plaintiffs 
claim  to  hold  the  goods  on  the  ground  that  they  were  purchased  \ 
with  a  fraudulent  intent  on  the  part  of  said  Nellie  Davis  of  not  pay-  \ 
ing  for  them,  which  entitled  the  plaintiffs  to  rescind  the  sale.  The 
ofificer  found  a  portion  of  the  goods,  and  delivered  them  to  the  plain- 
tiffs. A  few  days  after,  the  plaintiffs  brought  an  action  of  assumpsit 
against  Nellie  Davis  to  recover  the  price  of  that  portion  of  the  goods 
not  taken  on  the  replevin  writ ;  and  judgment  has  been  entered  in 
this  suit  upon  default,  for  the  price  of  the  goods,  less  the  value  of 
those  taken  on  the  replevin  writ.  The  consideration  of  the  sale  by 
Nellie  Davis  to  the  defendants  was  an  antecedent  debt  due  from  her 
to  them.  The  defendants  claim  that  the  plaintiffs,  by  bringing  the 
action  of  assumpsit  and  taking  judgment,  precluded  themselves  from 
maintaining  this  action.  The  cause  is  to  stand  for  trial  unless  the 
court  hold  that  the  defendants  are  entitled  to  judgment  on  the  above 
facts. 

Allien,  J.     The  fraudulent  purchase  of  the  goods  by  Nellie  Davis 
entitled  the  plaintiffs  to  rescind  the  contract  of  sale,  and  recover  them 
as  their  own  by  an  action  of  replevin,  or  their  value  by  an  action  ol 
trover.      The   same   right   existed   in   favor   of   the   plaintiffs   againsi; 
the  defendants,  who  purchased  and  took  the  goods  of  the  fraudulent^  •. 
vendee,  unless  the  purchase  was  made  in  good  faith  by  the  defend-  \  \ 
ants,  relying  on  their  vendor's  apparent  title,  with  no  notice  of  the  I 
fraud,  and   for  a  valuable  consideration  paid  at  the  time.     Bradley   | 
V.  Obear,  10  N.  H.  477;    Kingsbury  v.  Smith.  13  N.  H.  109;   Farley 
V.  Lincoln,  51  N.  H.  577,  12  Am.  Rep.  182.    The  action  of  assumpsit 
against  the  vendee  was  brought  after  the  replevin  suit,  and  was  for 
the  price  of  the  goods  not  replevied.     Having  rescinded  the  contract 
of  sale,  and  not  finding  all  the  goods,  so  as  to  take  them  in  replevin, 
the  plaintiffs  might  have  sued  in  trover   for  the  conversion   of  the 
remainder.     The  vendee  having  disposed  of  the  goods  for  her  own 
benefit,  the  plaintiff's  might  waive  the  tort,   and  maintain  assumpsit 
for  the  proceeds,  not  upon  the  original  contract  of  sale,  which  has 
been   rescinded,  but  upon  the  implied  promise  to  pay   for  property 
wrongfully  appropriated.     Mann  v.  Locke,  11  N.  H.  248;    Smith  v. 
Smith,  43  N.  H.  536.     If,  by  the  action  of  assimipsit,  the  plaintiffs 
affirmed  the  sale  to  the  defendants,  it  was  only  an  affirmance  of  the\ 
sale  of  those  goods  the  price  of  which  was  sought  to  be  recovered  in 
the  suit,  and  did  not  affect  the  plaintiffs'   right  to  further  prosecute 
their  suit  against  the  defendants  for  the  other  goods  taken  in  replevin. 
WooDW.  Sales — 20 


306  EFFECT  OF  FRAUD  ON  THE  SELLER  (Ch.  2 

The  action  of  assumpsit  was  not  a  revocation  of  the  rescission  of  the 
contract  of  sale,  nor  a  waiver  nor  release  of  the  right  of  action 
aganist  the  defendants  for  the  goods  replevied,  and  is  not  a  good 
ground  of  defense  to  this  suit. 

The  vendee  of  the  goods  had  title  and  possession,  and,  before  the 
contract  was  avoided  for  fraud,  could  make  to  an  innocent  purchaser 
for  value  a  sale  in  which  he  would  be  protected  against  the  claim  of 
the  first  vendor.  Benj.  Sales,  §§  648,  649;  Kingsbury  v.  Smith  and 
Farley  v.  Lincoln,  supra.  The  consideration  for  the  defendants'  pur- 
chase was  an  antecedent  debt  claimed  to  be  due  them  from  the  plain- 
tiffs' vendee,  and  the  plaintiffs  claim  that  the  purchase,  for  that  rea- 
son, was  not  one  for  value. 

The  defendants,  at  the  time  of  the  sale  to  them,  paid  nothing. 
They  received  the  goods  in  satisfaction  of  what  they  had  before 
paid,  and  not  upon  the  strength  of  any  new  consideration  or  value 
then  parted  with.  The  right  thus  acquired  was  not  in  equity,  su- 
perior to  the  plaintiffs'  right  of  reclaiming  the  goods  for  fraud  in  the 
sale,  and  the  advantage  the  defendants  gained  by  their  transaction 
could  not  equitably  be  retained  against  the  plaintiff's.  If,  of  the  two 
innocent  parties,  the  plaintiff's  clothed  the  fraudulent  vendor  with 
title  and  possession  of  the  goods,  on  the  strength  of  which  she  could, 
until  the  contract  was  avoided,  sell  to  the  defendants,  they  do  not 
suffer  by  the  plaintiffs'  rescission  of  the  contract  of  sale  and  recap- 
ture of  the  goods;  for,  to  the  extent  of  the  value  of  the  goods  re- 
taken, the  debt  which  the  vendee  attempted  to  pay  to  the  defendants 
would  not  be  discharged,  and  to  that  extent  they  are  left  in  the  posi- 
tion they  were  in  before  the  transaction.  By  the  plaintiff's'  recap- 
ture of  their  goods  the  defendants  lose  nothing  which  they  are  en- 
titled to  retain. 

In  Kingsbury  v.  Smith,  supra,  the  consideration  for  the  sale  of  the 
property,  of  which  a  title  was  fraudulently  obtained,  was  a  debt  due 
the  purchaser,  and  an  overcoat  delivered  at  the  time;  and  upon  the 
ground  that  the  purchaser  took  the  property  in  good  faith,  without 
notice  of  the  fraud,  and  that  the  overcoat  was  a  sufficient  considera- 
tion for  the  purchase,  the  decision  was  that  the  purchaser  was  pro- 
tected in  his  claim  against  that  of  the  original  vendor.  It  was  not 
decided  that  the  discharge  of  the  debt  made  the  purchase  bona  fide 
and  one  for  value,  and  there  is  nothing  in  the  opinion  which  shows 
that,  had  the  debt  been  the  sole  consideration,  the  decision  would 
not  have  been  in  favor  of  the  defrauded  vendor. 

In  other  jurisdictions  it  has  been  decided  that  the  purchaser  of 
goods  from  a  fraudulent  vendee  cannot  maintain  his  claim  to  the 
goods  against  the  right  of  the  original  vendor,  as  that  of  a  bona  fide 
purchaser  for  value,  where  the  consideration  of  his  purchase  is 
merely  the  discharge  of  an  antecedent  debt.  Barnard  v.  Campbell, 
58  N.  Y.  7'h,  76,  17  Am.  Rep.  208;    Stevens  v.  Brennan,  79  N.  Y. 


Sec.  12)  EFFECT  OF  FRAUD  ON  THE  SELLER  307 

254,  258;  Fletcher  v.  Drath,  66  Mo.  126;  Poor  v.  Wooclburn,  25  Vt. 
235;  Sargent  v.  Sturm,  23  Cal.  359,  83  Am.  Dec.  118.  The  assignee 
of  the  fraudulent  vendee  in  insolvency,  taking  the  assignment  for  the 
benefit  of  the  insolvent's  creditors,  could  not  maintain  his  right  to 
the  goods  against  the  demand  of  the  original  owner,  who  by  fraud 
had  been  induced  to  give  a  title,  (Farley  v.  Lincoln,  51  N.  H.  577, 
12  Am.  Rep.  182;  Bussing  v.  Rice,  2  Cush.  [Mass.]  48;)  nor  could 
an  assignee  of  the  fraudulent  vendee  in  bankruptcy  retain  the  goods 
against  the  claim  of  the  defrauded  vendor.  Donaldson  v.  Farwell, 
93  U.  S.  631,  23  L.  Ed.  993;  Montgomery  v.  Machine  Works,  92 
U.  S.  257,  23  L.  Ed.  656. 

If  the  defendants  had  given  their  note  for  the  price  of  the  goods, 
instead  of  receiving  them  in  discharge  of  a  debt,  they  could  not  re- 
sist the  plaintiffs'  claim,  unless  they  had  paid  the  note  before  the 
plaintiffs  rescinded  the  contract.  Matson  v.  Melchor,  42  Mich.  477, 
4  N.  W.  200.  If  they  had  received  the  goods  in  pledge  as  collateral 
security  for  their  debt,  or  a  mortgage  of  them  for  the  same  pur- 
pose, the  pledge  and  mortgage  could  not  be  upheld  against  the  plain- 
tiffs' claim.  Poor  v.  Woodburn,  supra.  If  the  defendants  had  at- 
tached the  goods  upon  a  suit  for  the  recovery  of  their  debt,  the  at- 
tachment would  be  no  bar  to  the  plaintiffs'  right  of  recover}^  (Brad- 
ley V.  Obear,  10  N.  H.  477;  Buffington  v.  Gerrish,  15  Mas"^s.  156,  8 
Am.  Dec.  97;  Wiggin  v.  Day,  9  Gray  [IMass.]  97;)  and  if  they  had 
obtained  judgment  in  their  suit,  and  purchased  the  property  at  an 
execution  sale,  they  could  not  maintain  their  right  to  it  against  the 
plaintiffs'  claim.  Devoe  v.  Brandt,  53  N.  Y.  462,  466.  If  the  de- 
fendants could  not  have  maintained  their  right  to  the  goods  upon  an 
attachment  made  to  secure  their  debt  before  the  rescission  of  the 
contract  of  sale  by  the  plaintiffs,  for  reasons  at  least  equally  strong 
they  could  not  receive  the  goods  in  payment  of  the  same  debt,  andj 
hold  them  against  the  plaintiff's'  right  of  recapture  in  replevin.  What! 
they  could  not  hold,  taken  by  lawful  process,  they  cannot  claim  tol 
hold  when  taken  voluntarily  with  the  consent  of  the  vendee  for  the* 
same  purpose. 

According  to  the  terms  of  the  agreed  case  the  cause  must  stand 
for  trial.     Case  discharged. 

BixGHAM,  J.,  did  not  sit.     The  others  concurred.^^ 

7  7  In  Goodwin  v.  Mass.  Loan,  etc.,  Co.,  152  IMass.  189,  25  N.  E.  100  (1S90), 
Field,  C.  J.,  said:  "Wliatever  may  be  the  law  in  the  case  of  a  transfer  of  chat- 
tels in  payment  of  a  pre-existing  debt,  when  the  debt  is  thereby  discharged  we 
think  that  by  the  weight  of  authority  a  pledging  of  chattels  as  security  for  a 
pre-existing  debt,  when  there  is  no  present  consideration  whatever  for  the 
pledge,  does  not  constitute  the  pledgee  a  holder  for  value,  within  the  meaning 
of  the  rule  we  are  con.sidering.  *  *  *  "  p.^^  g^^^  contra,  Kranert  v.  Simon, 
85  111.  344  (1872).  For  a  concise  discussion  of  the  question,  upon  principle,  see 
Williston,  Sales,  §  620. 


308  DESTRUCTION    OF    THE    GOODS PJSK  OF    LOSS  (Ch.  3 

CHAPTER  III 

DESTRUCTION  OF  THE  GOODS— RISK  OF  LOSS 


DEXTER  V.  NORTON  et  al 
(Court  of  Appeals  of  New  York,  1S71.     47  N.  Y.  62,  7  Am.  Rep.  415.) 

Appeal  from  a  judgment  entered  upon  an  order  of  the  General 
Term  of  the  Supreme  Court  in  the  First  Judicial  District,  overruling 
plaintiff's  exceptions,  and  directing  judgment  dismissing  the  complaint, 
in  accordance  with  ruling  of  the  court  at  circuit. 

This  action  is  brought  to  recover  damages  for  a  breach  of  a  con- 
tract to  sell  and  deliver  cotton.  Defendants,  on  the  5th  day  of  Oc- 
tober, 1865,  at  the  city  of  New  York,  agreed  to  sell  and  deliver  to  the 
plaintiff  607  bales  of  cotton,  bearing  certain  marks  and  numbers,  spec- 
ified in  the  contract,  at  the  price  of  forty-nine  cents  per  pound,  and 
fourteen  bales,  bearing  marks  and  numbers,  specified  in  the  written 
contract,  at  the  price  of  forty-three  cents  per  pound,  the  cotton  to  be 
paid  for  on  delivery.  Defendants  delivered  to  the  plaintiff  460  bales 
of  said  cotton,  the  remaining  161  bales  were  accidentally  destroyed 
by  fire  without  fault  or  negligence  of  the  defendants.  Cotton  rose  in 
value  after  the  sale,  and  plaintiff  claimed  to  recover  the  increase  on 
the  161  bales.  The  court  dismissed  the  complaint,  upon  the  ground 
that  a  fulfillment  of  the  contract  by  the  sellers  had  become  impossible 
by  the  destruction,  without  their  fault,  of  the  subject-matter  of  the 
sale,  and  they  were,  therefore,  excused  from  the  obligation  to  per- 
form their  agreement.     Plaintiff  excepted. 

Church,  Ch.  J.  The  contract  was  for  the  sale  and  delivery  of  spe- 
cific articles  of  personal  property.  Each  bale  sold  was  designated  by 
a  particular  mark,  and  there  is  nothing  in  the  case  to  show  that  these 
marks  were  used  merely  to  distinguish  the  general  kind  or  quality  of 
iche  article,  but  they  seem  to  have  been  used  to  describe  the  particular 
/bales  of  cotton  then  in  possession  of  the  defendant.  Nor  does  it  ap- 
pear that  there  were  other  bales  of  cotton  in  the  market  of  the  same 
kind,  and  marked  in  the  same  way.  The  plaintiff  would  not  have 
been  obliged  to  accept  any  other  cotton  than  the  bales  specified  in  the 
bought  note. 

The  contract  was  executor}^  and  various  things  remained  to  be 
done  to  the  one  hundred  and  sixty-one  bales  in  question  by  the  sellers 
before  delivery.  The  title  therefore  did  not  pass  to  the  vendee,  but  re- 
mained in  the  vendor.     Joyce  v.  Adams,  8  N.  Y.  291. 

This  action  was  brought  by  the  purchaser  against  the  vendor  to  re- 
cover damages  for  the  non-delivery  of  the  cotton,  and  the  important 
and  only  question  in  the  case  is,  whether  upon  an  agreement  for  the 


Ch.  3)  DESTRUCTION    OP    THE    GOODS RISK   OF    LOSS  309 

sale  and  delivery  of  specific  articles  of  personal  property,  under  cir- 
cumstances where  the  title  to  the  property  does  not  vest  in  the  ven- 
dee, and  the  property  is  destroyed  by  an  accidental  fire  before  deliver) 
without  the  fault  of  the  seller,  the  latter  is  liable  upon  the  contract  fo^ 
damages  sustained  by  the  purchaser. 

The  general  rule  on  this  subject  is  well  established  that  where  the 
performance  of  a  duty  or  charge  created  by  law  is  prevented  by  in- 
evitable accident  without  the  fault  of  the  party  he  will  be  excused, 
but  where  a  person  absolutely  contracts  to  do  a  certain  thing  not  im- 
possible or  unlawful  at  the  time,  he  will  not  be  excused  from  the  obli- 
gations of  the  contract  unless  the  performance  is  made  unlawful,  or  is 
prevented  by  the  other  party. 

Neither  inevitable  accident  nor  even  those  events  denominated  act.-^ 
of  God  will  excuse  him,  and  the  reason  given  is,  that  he  might  have 
provided  against  them  by  his  contract.  Paradine  v.  Tone,  Aleyn,  27; 
Harmony  v.  Bingham,  12  N.  Y.  99,  62  Am.  Dec.  142 ;  Tompkins  v. 
Dudley,  25  N.  Y.  272,  82  Am.  Dec.  349. 

But  there  are  a  variety  of  cases  where  the  courts  have  implied  a 
condition  to  the  contract  itself,  the  effect  of  which  was  to  relieve  the 
party  when  the  performance  had  without  his  fault,  become  impossible ; 
and  the  apparent  confusion  in  the  authorities  has  grown  out  of  the 
difficulty  in  determining  in  a  given  case  whether  the  implication  of  a 
condition  should  be  applied  or  not,  and  also  in  some  cases  in  placing 
the  decision  upon  a  wrong  basis.  The  relief  afforded  to  the  party  in 
the  cases  referred  to  is  not  based  upon  exceptions  to  the  general  rule, 
but  upon  the  construction  of  the  contract. 

For  instance,  in  the  case  of  an  absolute  promise  to  marry,  the  death 
of  either  party  discharges  the  contract,  because  it  is  inferred  or  pre- 
sumed that  the  contract  was  made  upon  the  condition  that  both  par- 
ties should  live. 

So  of  a  contract  made  by  a  painter  to  paint  a  picture,  or  an  author 
to  compose  a  work,  or  an  apprentice  to  serve  his  master  a  specified 
number  of  years,  or  in  any  contract  for  personal  services  dependent 
upon  the  life  of  the  individual  making  it,  the  contract  is  discharged 
upon  the  death  of  the  party,  in  accordance  with  the  condition  of  con- 
tinued existence,  raised  by  impHcation.    2  Smith,  Lead.  Cas.  50. 

The  same  rule  has  been  laid  down  as  to  property :  "As  if  A.  agrees 
to  sell  and  deliver  his  horse  Eclipse  to  B.  on  a  fixed  future  day,  and 
the  horse  die  in  the  interval,  the  obligation  is  at  an  end."  Benj.  Sales, 
424.  In  replevin  for  a  horse  and  judgment  of  retorno  habendo,  the 
death  of  the  horse  was  held  a  good  plea  in  an  action  upon  the  bond. 
[Carpenter  v.  Stevens]  12  Wend.  589.  In  Taylor  v.  Caldwell,  113  E. 
C.  R.  824,  3  Best  &  Smith,  836,  A.  agreed  with  B.  to  give  him  the  use 
of  a  music  hall  on  specified  days,  for  the  purpose  of  holding  concerts, 
and  before  the  time  arrived  the  building  was  accidentally  burned; 
Held,  that  both  parties  were  discharged  from  the  contract.  Black- 
burn, J.,  at  the  close  of  his  opinion,  lays  down  the  rule  as  follows: 


310  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  (Ch.  3 

"The  principle  seems  to  us  to  be,  that  in  contracts  in  which  the  per- 
formance depends  on  the  continued  existence  of  a  given  person  or 
thing,  a  condition  is  imphed  that  the  impossibihty  of  performance, 
arising  from  the  perishing  of  the  person  or  thing,  shall  excuse  the 
performance."  And  the  reason  given  for  the  rule  is,  "because  from 
the  nature  of  the  contract,  it  is  apparent  that  the  parties  contracted 
on  the  basis  of  the  continued  existence  of  the  particular  person  or 
thing." 

In  School  District  v.  Dauchy,  25  Conn.  530,  68  Am.  Dec.  371,  the 
defendant  had  agreed  to  build  a  school-house  by  the  1st  of  JMay,  and 
had  it  nearly  completed  on  the  27th  of  x\pril,  when  it  was  struck  by 
lightning  and  burned;  and  it  was  held  that  he  was  liable  in  damages 
for  the  nonperformance  of  the  contract.  But  the  court,  while  en- 
forcing that  general  rule  in  a  case  of  evident  hardship,  recognizes  the 
rule  of  an  implied  condition  in  case  of  the  destruction  of  the  specific 
subject-matter  of  the  contract;   and  this  is  the  rule  of  the  civil  law. 

Pothier  Cont.  Sale,  art.  4,  §  1,  p.  31.  We  were  referred  to  no  au- 
thority against  this  rule.  But  the  learned  counsel  for  the  appellant, 
in  his  very  able  and  forcible  argument,  insisted  that  the  general  rule 
should  be  applied  in  this  case.  While  it  is  difficult  to  trace  a  clear  dis- 
tinction between  this  case  and  those  where  no  condition  has  been  im- 
plied, the  tendency  of  the  authorities,  so  far  as  they  go,  recognize  such 
a  distinction,  and  it  is  based  upon  the  presumption  that  the  parties 
contemplated  the  continued  existence  of  the  subject-matter  of  the 
contract. 

The  circumstances  of  this. case  are  favorable  to  the  plaintiff.  The 
property  was  merchandise  sold  in  the  market.  The  defendant  could, 
and  from  the  usual  course  of  business  we  may  infer  did,  protect  him- 
self by  insurance;  but  in  establishing  rules  of  liability  in  commercial 
transactions,  it  is  far  more  important  that  they  should  be  uniform  and 
certain  than  it  is  to  work  out  equity  in  a  given  case.  There  is  no  hard- 
ship in  placing  the  parties  (especially  the  buyer)  in  the  position  they 
were  in  before  the  contract  was  made.  The  buyer  can  only  lose  the 
profits  of  the  purchase;  the  seller  may  lose  the  whole  contract  price, 
and  if  his  liability  for  non-delivery  should  be  established,  the  enhanced 
value  of  the  property.  After  considerable  reflection,  I  am  of  the  opin- 
ion that  the  rule  here  indicated  of  an  implied  condition  in  case  of  the 
destruction  of  the  property  bargained  without  fault  of  the  party,  will 
operate  to  carr}-  out  the  intention  of  the  parties  under  most  circum- 
stances, and  w^ll  be  more  just  than  the  contrary  rule.  The  buyer  can 
of  course  always  protect  himself  against  the  effect  of  the  implied  con- 
dition, by  a  provision  in  the  contract  that  the  property  shall  be  at  the 
risk  of  the  seller. 

Upon  the  grounds  upon  which  this  rule  is  based  of  an  implied  con- 
dition, it  can  make  no  difference  whether  the  property  was  destroyed 
by  an  inevitable  accident  or  by  an  act  of  God,  the  condition  being  that 
the  property  shall  continue  to  exist.    If  we  were  creating  an  exception 


Ch.  3)  DESTRUCTION    OP    THE    GOODS RISK   OP    LOSS  311 

to  the  general  rule  of  liability,  there  would  be  force  in  the  considera- 
tions urged  upon  the  argument,  to  limit  the  exception  to  cases  where 
the  property  was  destroyed  by  the  act  of  God,  upon  grounds  of  pub- 
lic policy,  but  they  are  not  material  in  adopting  a  rule  for  the  con- 
struction of  the  contract  so  as  to  imply  a  condition  that  the  property 
was  to  continue  in  existence.  It  can  make  no  difference  how  it  was 
destroyed,  so  long  as  the  party  was  not  in  any  degree  in  fault.  The 
minds  of  the  parties  are  presumed  to  have  contemplated  the  possible 
destruction  of  the  property,  and  not  the  manner  of  its  destruction ; 
and  the  supposed  temptation  and  facility  of  the  seller  to  destroy  the 
property  himself  cannot  legitimately  operate  to  affect  the  principle 
involved. 

The  judgment  must  be  affirmed. 

Allen,  Grover  and  Rapallo,  JJ.,  concur.  Pdckham  and  Foi,- 
GER,  JJ.,  dissent. 

Judgment  affirmed. 

ONTARIO  DECIDUOUS  FRUIT  GROWERS'  ASS'N  v.  CUT- 
TING FRUIT  PACKING  CO. 

(Supreme  Court  of  California.  1901.     134  Cal.  21,  66  Pac.  28,  53  L.  R.  A.  6S1, 

86  Am.  St.  Rep.  231.) 

Gray,  C.  This  action  was  brought  to  recover  the  price  of  certain 
peaches  sold  and  delivered  under  a  contract  in  writing.  The  de- 
fendant set  up  as  a  defense  noncompliance  of  plaintiff  with  the  con- 
tract, and  also  a  counterclaim  on  account  of  damages  arising  out 
of  such  noncompliance.  The  plaintiff  had  judgment,  from  which, 
and  from  an  order  denying  a  new  trial,  the  defendant  appeals. 

The  contract  between  the  parties  contains  the  following  stipula- 
tions :  "Seller  has  this  day  sold  and  agrees  to  deliver  to  buyer  f.  o. 
b.  cars  at  South  Cucamonga,  and  buyer  has  bought  and  agrees  to 
receive  from  seller,  the  peaches,  to  the  extent  named,  grown  during 
the  year  1898  on  the  orchard  or  land  known  and  described  as  fol- 
lows :  Sundry  orchards  in  Ontario  and  Cucamonga,  at  the  prices 
and  on  the  terms  and  conditions  named."  Then  follow  the  terms, 
showing  the  grades  and  varieties  of  peaches  sold,  the  minimum  and 
maximum  quantities  of  each,  and  the  price  per  ton,  and  then  the 
contract  proceeds  as  follows :  "Deliveries  shall  be  made  between  the 
20th  day  of  July  and  the  1st  day  of  September,  1898,  and  shall  conform 
as  far  as  possible  to  the  mutual  convenience  of  buyer  and  seller," 
Then  follows  a  description  of  the  fruit  as  to  quality  and  size,  and 
after  that  we  quote  again:  "Payments  shall  be  made  as  follows: 
One-half  the  delivery  value  within  ten  days  of  the  date  of  full  deliv- 
ery, and  one-half  (the  balance)  of  delivery  value  within  thirty  days 
of  the  date  of  final  delivery,  or  the  execution  of  all  the  terms  of  this 
contract  by  the  seller."  The  contract  is  signed  by  the  corporation 
plaintiff  as  the  "seller"  and  the  defendant  corporation  as  the  "buyer." 


312  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  (Ch.  3 

At  the  trial  it  was  shown  by  oral  evidence,  against  the  objection 
and  exception  of  defendant,  that  the  "sundry  orchards,"  spoken  of  in 
the  written  contract  referred  to  and  was  confined  to  orchards  be- 
longing to  the  stockholders  of  plaintiff. 

It  appears  that  the  fruit  crop  in  the  districts  mentioned  in  the  con- 
tract promised  well  at  the  date  of  the  making  of  said  contract,  and 
that  in  an  ordinary  year  the  orchards  referred  to  therein  would  have 
produced  sufficient  fruit  to  carry  out  the  contract.  But  before  it  was 
fully  grown  the  season  turned  unusually  dry  and  hot,  and  hot  winds 
impaired  the  quantity  and  quality  of  the  fruit  to  such  an  extent  that 
it  was  impossible  for  plaintiff  to  furnish,  from  the  orchards  of  its 
stockholders  in  the  said  districts  mentioned  in  the  contract,  a  quan- 
tity of  fruit  equal  to  one-half  of  the  minimum  amount  agreed  to  be 
furnished.  Plaintiff  did,  however,  furnish  to  defendant  and  defendant 
received  such  fruit  as  was  grown  on  said  orchards  of  the  varieties 
and  qualities  described  in  the  contract.  When  it  was  apparent  that 
the  varieties  named  in  the  contract  could  not  be  obtained  from  said 
orchards  to  the  extent  agreed  upon,  the  defendant  offered  to  accept 
"Salway"  peaches  in  satisfaction  of  the  contract,  but  the  plaintiff 
failed  to  comply  with  this  offer.  "Salway"  peaches  were  not  men- 
tioned in  the  contract. 

The  defendant  places  its  contention  for  a  reversal  upon  three 
grounds,  as  follows :  First,  the  plaintiff  could  recover  nothing  without 
a  full  delivery  of  the  minimum  contract  quantity  of  fruit,  as  such 
delivery  was  a  condition  precedent  to  the  right  to  recover  anything 
under  the  contract;  second,  the  court  erred  in  permitting  plaintiff 
to  explain  by  oral  evidence  what  was  meant  by  "sundry  orchards"; 
and,  third,  plaintiff's  refusal  to  furnish  Salway  peaches  in  accord- 
ance with  defendant's  request. 

As  to  the  first  ground,  we  think  that  defendant  should  not  be  per- 
mitted to  accept  and  retain  the  peaches  of  plaintiif ,  and  yet  refuse  to 
pay  for  them.  The  defendant's  agents  had  inspected  the  orchards  of 
the  stockholders  of  plaintiff,  and  it  must  have  known  at  the  time  it 
was  receiving  this  fruit  that  it  was  impossible  to  comply  strictly  with 
the  contract.  The  rule  is  that,  "though  a  contract  of  sale  be  entire, 
and  the  seller  deliver  only  a  part  of  the  goods  bargained  for,  yet,  if 
the  vendee  retain  such  part,  the  vendor  may  recover  the  value  of  the 
part  retained  in  an  action  for  goods  sold  and  delivered."  Clark  v. 
Moore,  3  Mich.  55.  The  acceptance  and  retention  of  a  part  of  the 
goods  is  treated  as  a  waiver  of  the  condition  precedent  as  to  the 
delivery  of  the  rest  of  the  goods.  And  where  the  sale  is  of  specific 
goods,  and  the  goods  perish  before  delivery,  without  the  fault  of 
the  vendor,  the  vendee  has  no  right  of  action  for  failure  to  deliver 
on  the  part  of  the  vendor.  This  rule  applies  also  where  it  becomes 
impossible  to  deliver  a  part  of  the  property  sold,  as  is  illustrated 
in  the  English  case  of  Howell  v.  Coupland,  L.  R.  9  Q.  B.  462. 

As  to  this  case  we  quote  from  Benj.  Sales,  §  570,  as  follows :  "The 


Ch.  3)  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  313 

principle  of  Taylor  v.  Caldwell  [3  Best  &  S.  826]  was  applied  to  a 
case  (Howell  v.  Coupland,  L.  R.  9.  Q.  B.  462,)  where  the  contract 
was  to  sell  '200  tons  of  potatoes  grown  on  land  belonging  to  the 
defendant  in  Whaplode.'  The  potatoes  were  not  in  existence  at 
the  date  of  the  contract,  but  the  land,  when  sown,  was  capable  in 
an  average  year  of  producing  far  more  than  the  quantity  of  pota- 
toes contracted  for.  There  was  a  failure  of  the  crop  from  disease, 
and  the  vendor  was  only  able  to  deliver  eighty  tons.  In  an  action 
for  nondelivery  of  the  residue,  the  defendant  was  held  to  be  excused 
from  further  performance  on  the  ground  that  the  contract  was  tor 
a  portion  of  a  specific  crop,  and  therefore  subject  to  an  implied  con- 
dition that  the  vendor  should  be  excused  if,  before  breach,  perform- 
ance became  impossible  from  the  perishing,  without  default  on  his 
part,  of  the  subject-matter  of  the  contract." 

In  the  case  at  bar,  the  sale  having  been  of  specific  varieties  of  fruit 
growing  and  to  be  grown  on  specific  orchards,  and  the  orchards 
having  been  so  far  affected  by  the  extraordinary  drought  that  they 
did  not  produce  sufficient  fruit  of  the  varieties  named  to  comply  with 
the  contract,  the  plaintiff  could  be  compelled  to  perform  the  con- 
tract only  so  far  as  it  was  possible  for  it  to  do  so.  It  could  not  be 
made  to  perform  impossibilities,  nor  was  it  liable  in  damages  by  way 
of  counterclaim  or  otherwise  for  a  failure  to  comply  with  its  con-J 
tract  resulting  from  vis  major,  and  not  attributable  tO'  any  fault  or 
the  part  of  said  plaintiff.  Nor  could  plaintiff  be  compelled  to  sub- 
stitute other  peaches  than  those  contemplated  in  the  original  con- 
tract of  sale.  If  the  sale  had  been  of  a  specific  lot  of  horses,  and 
half  of  them  had  died  before  delivery,  I  take  it  that  no  one  would 
contend  that  the  vendor  could  be  compelled  to  substitute  other  horses 
before  he  could  recover  for  such  as  the  vendee  had  already  received. 
The  vendee  having  accepted  a  part  of  the  fruit,  it  should  pay  for  it 
at  the  agreed  rate,  and  the  loss  of  the  other  fruit  is  the  misfortune 
of  the  vendee  as  well  as  of  the  vendor,  and  neither  is  liable  to  the 
other  on  account  of  it.  Dexter  v.  Norton,  47  N.  Y.  62,  7  Am.  Rep. 
415.  The  furnishing  of  other  peaches  for  those  lost  would  be  sub- 
stituting a  new  sale,  rather  than  substantially  complying  with  the 
original  contract  of  sale.  There  is  nothing  in  Remy  v.  Olds  (Cal.) 
34  Pac.  218,  21  L,.  R.  A.  645,  in  any  way  conflicting  with  the  fore- 
going principles. 

There  was  no  error  in  permitting  plaintiff  by  parol  evidence  to 
identify  the  subject-matter  of  the  contract.  The  expression  "sundry 
orchards  in  Ontario  and  Cucamonga"  shows  on  its  face  that  it  was 
not  the  purpose  of  the  contract  to  include  all  the  orchards  in  the 
districts  named,  and  it  therefore  became  necessary  to  resort  to  oral 
evidence  to  explain  what  orchards  were  meant.  Benj.  Sales,  §  213; 
Tayl.  Ev.  §§  1194,  1195.  Nor  was  there  prejudicial  error  in  per- 
mitting it  to  be  shown  by  oral  evidence  that  defendant  agreed  at  the 
time  the  contract  was  signed  not  to  hold  the  plaintiff  bound  to  de- 


314  DESTRUCTION    OF    THE    GOODS — RISK   OF    LOSS  (Ch.  3 

liver  the  minimum  quantity  mentioned  in  the  contract,  unless  that 
quantity  was  actually  grown  on  the  particular  orchards  embraced  in 
the  contract,  because,  as  we  have  already  seen,  that  condition  could  be 
fairly  implied  from  the  written  agreement,  and  it  could  do  no  harm  to 
prove  by  oral  evidence  that  which  was  already  established  by  the  writ- 
ten contract. 

The  judgment  and  order  should  be  affirmed. 

Chipman  and  Smith,  CC,  concurred. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion,  the 
judgment  and  order  are  affirmed.^ 


CALCUTTA  &  BURMAH  STEAM  NAV.  CO.,  Limited,  v.  DE 

MATTOS. 

DE  MATTOS  v.  CALCUTTA  &  BURMAH  STEAM  NAV.  CO., 

Limited. 

(Court  of  Queen's  Bench,  1863.     32  Law  J.  Q.  B.  322.) 

Blackburn,  J.^  These  cross  actions  arise  out  of  the  same  trans- 
action. 

A  special  case  has  been  stated,  on  the  argument  of  which  some 
very  important  and  difficult  questions  of  mercantile  law  were  mooted 
and  argued  by  Mr.  Bovill  for  the  company,  and  Mr.  Mellish  for  De 
Mattos ;  but  the  view  I  take  of  the  case  makes  it  unnecessary  to  pro- 
nounce an  opinion  on  most  of  these.  The  question  which,  in  my  view 
of  the  case  decides  everything,  is :  What  was  the  meaning  of  the 
contract  between  the  parties?  That  contract  is  contained  in  five  let- 
ters set  out  in  the  case,  and,  being  in  writing,  it  is  for  the  Court  to 
construe  it.  The  first  of  those  letters  bore  date  the  1st  of  May  I860, 
and  the  contract  was  finally  concluded  by  the  last,  which  bore  date 
the  7th  of  May,  1860. 

Leaving  out  those  parts  of  the  contract  not  relevant  to  the  present 
dispute,  and  stating  the  terms,  as  they  were  finally  agreed  to,  in  the 
very  words  of  the  letters,  the  contract  is  thus  expressed :  "De  Mattos 
is  to  supply  the  company  with  1,000  tons  of  any  of  the  first-class 
steam  coals  on  the  Admiralty  list,  obtainable  at  the  port  of  shipment, 
the  selection  of  the  particular  description  to  be  at  the  company's  op- 
tion, delivered  at  Rangoon,  alongside  craft,  steamer,  floating  depot, 
or  pier,  as  may  be  directed  by  the  company's  agent  at  that  port.  Ship- 
ment to  be  before  the  30th  of  June  then  next.  The  price  to  be  45s. 
per  ton  of  20cwt.  delivered  at  Rangoon.  Payment,  one-half  of  invoice 
value  by  bill  at  three  months,  on  handing  bill  of  lading  and  policies 
of  insurance  to  cover  the  amount,  or  in  cash  under  discount  at  the 

1  Compare  Anderson  v.  May,  50  Minn.  2S0,  52  N.  W.  530,  17  L,  R.  A.  555, 
36  Am.   St  Rep.  642  (1S92). 

2  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  3)  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  315 

rate  of  £S.  per  cent.,  at  De  Mattos's  option.  The  balance  by  the  com- 
pany's Rangoon  agent's  drafts  on  the  company  in  London,  on  comple- 
tion of  delivery  at  Rangoon." 

This  contract  having  been  entered  into  on  the  7th  of  May,  De  Mat- 
tes, in  furtherance  of  it  procured  a  charter  of  the  ship  Waban.  The 
company  were  not  parties  to  this  charter-party,  nor  privy  to  its  con- 
tents. By  it  the  freight  payable  to  the  shipowners  was  40s.  per  ton ; 
it  was  all  made  payable  by  bills  in  London,  to  be  accepted  by  the 
charterer  (De#  Mattos),  part  upon  the  shipment  of  the  goods,  but  to 
be  returned  if  the  goods  were  not  delivered  at  their  destination ;  the 
residue  on  certificate  of  the  due  delivery.  So  that  by  the  provisions 
of  this  charter-party  the  whole  charter  freight  of  40s.  per  ton  was 
made  contingent  on  the  right  delivery  at  Rangoon  (so  that  the  ship- 
owners had  a  right,  by  trans-shipment,  if  necessary,  to  carry  on  the 
goods  to  Rangoon  for  the  purpose  of  earning  this  freight  of  40s.  per 
ton.),  and  the  freight  being  all  payable  in  London  by  the  charterers, 
the  shipowner  renounced  all  lien  for  freight. 

De  Mattos  shipped  on  board  this  vessel  L166  tons  (being  more 
than  the  quantity  specified  in  his  contract,  viz.,  LOOO  tons).  He  took 
a  bill  of  lading  for  that  quantity,  expressing  the  freight  "to  be  paid 
by  the  charterers  as  per  charter-party ;"  so  that  the  bill  of  lading  pro- 
vides that  there  shall  be  no  freight  payable  on  delivery,  and  conse- 
quently no  lien  for  it  as  against  the  assignee  of  the  bill  of  lading. 
He  also  efifected  a  policy  of  insurance  for  £1,400.,  being  somewhat 
above  the  half  of  the  invoice  value  of  L166  tons  at  45s.;  the  precise 
half  of  the  invoice  value  being  £l,Z\\.  15s.  He  transmitted  the  bill 
of  lading  and  policy  to  the  company,  and  received  payment  under  dis- 
count of  the  iL31L  15s.  It  is  not  explained  in  the  case  how  it  came 
that  De  Mattos  shipped  1,166  tons  instead  of  1,000  tons;  but  as  no 
objection  was  made,  I  presume  that  it  had  been  so  arranged  between 
the  parties;  at  all  events,  the  Court  having  power  to  draw  inferences 
of  fact,  I  draw  the  inference  that  the  parties  agreed  that  the  166  tons 
extra  were  shipped  on  similar  terms  to  those  relating  to  the  1,000 
tons. 

These  facts  are  sufficient  to  raise  the  question  on  the  solution  of 
which  I  think  this  case  depends,  viz.,  What  was  the  effect  of  the  con- 
tract as  regards  the  property  in  the  goods  and  the  right  to  the  price, 
from  the  time  of  the  handing  over  the  shipping  documents  and  paying 
half  of  the  invoice  value?  There  is  no  rule  of  law  to  prevent  the 
parties,  in  cases  like  the  present,  from  making  whatever  bargain  they 
please.  If  they  use  the  words  in  the  contract  showing  that  they  in- 
tend that  the  goods  shall  be  shipped  by  the  person  who  is  to  supply 
them  on  the  terms,  that  when  shipped  they  shall  be  the  consignee's 
property,  and  at  his  risk,  so  that  the  vendor  shall  be  paid  for  them 
whether  delivered  at  the  port  of  destination  or  not,  this  intention  is 
effectual.  Such  is  the  common  case  where  goods  are  ordered  to  be 
sent  by  a  carrier  to  a  port  of  destination.     The  vendor's  duty  is,  in 


316  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  (Ch.  3 

such  cases,  at  an  end  when  he  has  delivered  the  goods  to  the  carrier, 
and,  if  the  goods  perish  in  the  carrier's  hands,  the  vendor  is  dis- 
charged, and  the  purchaser  is  bound  to  pay  him  the  price.  See  Dtui- 
lop  V.  Lambert,  6  CI.  &  Fin.  600.  If  the  parties  intend  that  the  ven- 
dor shall  not  merely  deliver  the  goods  to  the  carrier,  but  also  under- 
take that  they  shall  actually  be  delivered  at  their  destination,  and  ex- 
press such  intention,  this  also  is  effectual ;  in  such  a  case,  if  the  goods 
perish  in  the  hands  of  the  carrier,  the  vendor  is  not  only  not  entitled 
to  the  price,  but  he  is  liable  for  whatever  damage  r^y  have  been 
sustained  by  the  purchaser  in  consequence  of  the  breach  of  the  ven- 
dor's contract  to  deliver  at  the  place  of  destination.  See  per  Lord 
Cottenham,  C,  delivering  judgment  in  the  House  of  Lords  in  Dun- 
lop  v.  Lambert,  6  CI.  &  Fin.  621. 

But  the  parties  may  intend  an  intermediate  state  of  things ;  they 
may  intend  that  the  vendor  shall  deliver  the  goods  to  the  carrier,  and 
that,  when  he  has  done  so,  he  shall  have  fulfilled  his  undertaking,  so 
that  he  shall  not  be  liable  in  damages  for  a  breach  of  contract  if  the 
goods  do  not  reach  their  destination ;  and  yet  they  may  intend  that  the 
whole  or  part  of  the  price  shall  not  be  payable  unless  the  goods  do 
arrive.  They  may  bargain  that  the  property  shall  vest  in  the  pur- 
chaser, as  owner,  as  soon  as  the  goods  are  shipped,  that  they  shall 
then  be  both  sold  and  delivered,  and  yet  that  the  price  (in  whole  or  in 
part)  shall  be  payable  only  on  the  contingency  of  the  goods  arriving; 
just  as  they  might,  if  they  pleased,  contract  that  the  price  should  not 
be  payable  unless  a  particular  tree  fall ;  but  v;ithout  any  contract  on 
the  vendor's  part  in  the  one.  case  to  procure  the  goods  to  arrive,  or  in 
the  other  to  cause  the  tree  to  fall.  Where  the  contract  is  of  this  kind, 
the  position  of  the  vendor  and  purchaser,  in  case  the  goods  do  not  ar- 
rive, is  analogous  to  that  of  freighter  and  shipowner,  in  the  ordinary 
contract  of  carriage  on  board  a  ship,  in  case  the  goods  are  prevented 
from  arriving  by  one  of  the  excepted  perils.  The  shipowner  is  not 
bound  to  carry  and  deliver  at  all  events ;  but,  though  he  is  excused  if 
prevented  by  the  excepted  perils,  yet  no  freight  is  earned  or  payable 
unless  the  goods  are  delivered.  In  the  case  of  freight,  also,  the  ques- 
tion often  arises,  whether  a  payment  made  at  the  port  of  shipment  is 
an  advance  of  part  of  the  freight,  returnable  if  the  goods  are  not 
delivered  and  freight  earned,  or  is  an  absolute  payment,  leaving  only 
the  balance  contingent  on  the  safe  delivery  of  the  goods, — a  question 
very  analogous  to  one  that  arises  on  the  present  contract.  See  the 
cases  as  to  pre-payment  of  freight  collected  in  M'Lachlan  on  Ship- 
ping, p.  443. 

The  parties  in  the  present  case  have  not,  in  express  terms,  declared 
their  intention  as  to  the  time  when  the  property  in  the  coals  was  to 
be  transferred  from  De  Mattos,  who  was  to  supply  the  coals,  to  the 
company;  and  we  are  left  to  collect  the  intention  from  the  various 
stipulations  in  the  contract.  It  is  clear  that  the  coals  are  to  be  ship- 
ped in  this  country,  on  board  a  vessel  to  be  engaged  by  De  Mattos, 


Ch.  3)  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  317 

to  be  insured,  and  the  policy  of  insurance  and  the  bill  of  lading  and 
invoice  to  be  handed  over  to  the  company.  As  soon  as  De  Matto^, 
in  pursuance  of  these  stipulations,  gave  the  company  the  policy  anfli 
bill  of  lading,  he  irrevocably  appropriated  to  this  contract  the  goods 
which  were  thus  shipped,  insured,  and  put  under  the  control  of  the 
company.  After  this,  he  could  never  have  been  required,  nor  would 
he  have  had  the  right,  to  ship  another  cargo  for  the  company ;  so  that 
from  that  time  that,  which  had  originally  been  an  agreement  to  sup- 
ply any  coals  answering  the  description,  became  an  agreement  relat- 
ing to  those  coals  only,  just  as  much  as  if  the  coals  had  been  specified 
from  the  first. 

Sir  Cresswell  Cresswell,  in  delivering  an  elaborate  judgment  of  the 
Privy  Council  in  Gilmour  v.  Supple,  11  Moo.  P.  C.  566,  says:  "By 
the  law  of  England,  by  a  contract  for  the  sale  of  specific  ascertained 
goods,  the  property  immediately  vests  in  the  buyer,  and  a  right  to  the 
price  in  the  seller,  unless  it  can  be  shewn  that  such  was  not  the  in- 
tention of  the  parties."  "Various  circumstances,"  he  adds,  "have  been 
treated  by  our  Courts  as  sufficiently  indicating  such  contrary  inten- 
tion." I  think  this  a  very  accurate  statement  of  the  law;  and  I  think, 
therefore,  that  in  construing  this  contract,  the  prima  facie  construc- 
tion is,  that  the  parties  intended  that  the  property  in  the  coals  vested 
in  the  company,  and  the  right  to  the  price  in  De  Mattos,  as  soon  as  it 
came  to  relate  to  specific  ascertained  goods ;  that  is,  on  the  handing 
over  the  documents ;  and  the  inquiry  must  be,  whether  there  is  any 
sufficient  indication  in  the  contract  of  a  contrary  intention.  As-  to 
one-half  of  tlie  price,  the  balance,  as  it  is  called  in  the  letter  form- 
ing the  contract,  the  intention  that  it  should  only  be  paid  "on  comple- 
tion of  delivery  at  Rangoon,"  seems  to  me  as  clearly  declared  as  words 
could  possibly  declare  it;  and  consequently,  I  think,  as  to  that  half  of 
the  price  no  right  vested  in  De  Mattos,  unless  and  until  there  was  a 
complete  delivery  at  Rangoon. 

But,  consistently  with  this,  there  might  be  an  intention  that  there 
should  be  a  complete  vesting  of  the  property  in  the  goods  in  the  com- 
pany, and  a  complete  vesting  of  the  right  to  the  half  of  the  price  in 
De  Mattos;  so  as  in  effect  to  make  the  goods  be  at  the  risk  of  the 
company,  though  half  the  price  was  at  the  risk  of  De  Mattos :  so 
that  the  goods  were  sold  and  delivered,  though  the  payment  of  half 
the  price  was  contingent  on  the  delivery.  And  this,  I  think,  is  the 
true  legal  construction  of  the  contract.  There  are,  undoubtedly,  some 
expressions  in  the  letters,  which  may  plausibly  be  said  to  indicate  an 
intention,  that  the  whole  risk  shall  be  on  De  Mattos  up  to  the  time  of 
the  contemplated  delivery  at  Rangoon.  The  coals  are  to  be  delivered 
at  Rangoon;  the  whole  price  is  expressed  to  be  "45s.  per  ton  of 
20cwt.  delivered  at  Rangoon." 

I  fully  admit,  that  the  argument,  that  these  words  imply  an  under- 
taking that  the  coals  shall  be  delivered  at  Rangoon,  or,  at  least,  that 
nothing  shall  be  paid  except  for  such  coals  as  are  delivered  at  Rangoon, 


318  DESTRUCTION  OP  THE  GOODS RISK  OF  LOSS        (Ch.  S 

is  a  very  forcible  one.  But  then,  we  must  look  at  the  whole  contract. 
We  find  that  the  coals  when  shipped  are  to  be  insured,  and  the  policy 
of  insurance  is  to  be  handed  over  to  the  company.  It  is  consistent 
with  this,  that  the  policy  was  to  be  handed  over  to  the  company,  only 
to  be  a  collateral  security  for  an  advance ;  but  it  is  more  natural  that 
it  should  be  given  to  them,  because  the  risk  which  the  policy  covered 
was  to  be  theirs.  The  bill  of  lading-  is  handed  to  them  so  as  to  give 
them  the  actual,  de  facto,  dominion  over  the  goods  and  to  confer  upon 
them  the  power  of  giving  to  a  third  party,  by  a  sale  or  pledge  of  that 
bill,  what  that  third  person  would  believe  to  be  a  rightful  dominion 
over  the  goods.  This,  too,  is  consistent  with  the  bill  of  lading  being 
delivered  to  the  company  merely  with  a  view  to  give  them  an  ef- 
fectual security  for  an  advance;  but,  as  before,  I  think  the  more 
natural  solution  of  it  is,  that  it  was  given  to  them  because,  the  prop- 
erty being  theirs,  they  were  entitled  to  the  control  of  the  goods. 

It  is  very  true  that  the  company  (a  steam  navigation  company,  who 
wanted  coals  for  their  own  use)  probably  did  not  contemplate  sell- 
ing the  goods  to  third  parties,  and  therefore  the  argument  as  to  the 
intention  of  the  parties,  arising  from  the  possession  of  the  bill  of  lad- 
ing, is  not  so  strong  as  if  the  purchaser  had  been  an  ordinary  mer- 
chant, who  purchased  the  coals  meaning  to  sell  them  again,  and  who, 
therefore,  presumably  stipulated  for  the  bill  of  lading  in  order  that 
he  might  be  able,  without  breach  of  contract  or  bad  faith,  to  sell  them 
again ;  but  though  the  company  probably  did  not  mean  to  sell  this 
cargo  before  it  arrived  at  Rangoon,  they  had,  from  the  time  the  bill 
of  lading  was  put  into  their-  hands,  power  to  do  so  if  they  thought  fit ; 
and  it  seems  to  me  that  the  fact,  that  the  contract  contains  a  stipula- 
tion for  that  power  in  favour  of  the  purchasers,  is  very  strong  to 
fihew,  that  the  property,  and  consequently  the  risk,  was  intended  to 
|be  in  them  from  the  time  they  received  the  bill  of  lading.     *     *     * 

If  the  true  construction  of  the  contract  be  that  which  I  put  upon 
it,  there  is  no  difficulty  in  disposing  of  the  case.  The  company  are 
not  entitled  to  recover  back  any  portion  of  the  money  paid  to  De 
Mattos :  for  it  was  to  be  his  absolutely  on  handing  over  the  policy 
and  bill  of  lading ;  nor  are  they  entitled  to  maintain  any  action  against 
him  for  not  causing  the  goods  to  be  delivered  at  Rangoon:  for  he  had 
not  entered  into  any  contract  to  the  effect  that  he  would  at  all  events 
cause  them  to  be  delivered  there.  They,  therefore,  fail  entirely  in 
/their  action  against  him.  De  Mattos,  on  the  other  hand,  is  not  en- 
/ titled  to  recover  from  the  company  any  part  of  the  balance  of  the 
'  price  which  by  the  contract  was  made  payable  by  the  drafts  of  the 
company's  Rangoon  agents  "on  completion  of  the  delivery  at  Ran- 
goon:" for  no  portion  of  the  coals  ever  was  delivered  at  Rangoon 
according  to  the  contract.  It  is  true  that  850  tons  were  tendered  there 
to  the  company,  who  might  have  had  them,  if  they  would  have  paid 
to  the  captain  of  the  Alfred  Lamont  45s.  per  ton  in  discharge  of  his 
claim  for  freight;  and  it  is  true  also  that  they  refused  to  pay  this  sum. 


Ch.  3)  DESTRUCTION    OF    THE    GOODS RISK   OP    LOSS  319 

(as  they  had  a  full  right  to  refuse) ;  and  that  when  the  captain  chose 
to  sell  the  coals  by  auction  they  purchase  them,  paying  25s.  per  ton. 
The  effect  of  this  was,  that  these  coals  actually  did  come  into  their 
possession  at  Rangoon ;  but  the  delivery,  on  the  completion  of  which 
the  balance  of  the  price  was  by  the  contract  to  become  payable,  was  a 
delivery  under  the  contract  "at  Rangoon,  alongside  craft,  steamer, 
floating  depot,  or  pier,"  without  any  further  payment  being  made. 
There  never  was  any  such  delivery. 

The  observations  of  Lord  Brougham  in  delivering  the  judgment 
of  the  Privy  Council  in  Logan  v.  Le  Mesurier,  6  Moo.  P.  C.  132, 
seem  to  me  much  in  point  on  this  part  of  the  case.  If  the  conduct 
of  the  company's  agents  at  Rangoon  had  been  niala  fide,  and  such  as 
to  prevent  the  delivery  according  to  the  contract,  or  if  it  had  amount- 
ed to  a  waiver  of  the  fulfilment  of  the  condition,  then  no  doubt,  as 
against  them,  the  condition  might  have  been  considered  as  fulfilled, 
and  the  balance  would  have  been  payable.  We  have  power  to  draw 
inferences  of  fact ;  but  I  think  there  is  nothing  stated  in  the  case,  that 
would  justify  us  in  putting  such  a  construction  on  the  conduct  of  the 
company's  agents  at  Rangoon,  or  in  drawing  such  an  inference  of  fact. 
In  my  opinion,  the  second  question  in  the  case  must  be  answered  in 
favour  of  the  company. 

There  remains  only  one  other  point  to  consider.  The  company  pur- 
chased the  850  tons  from  the  captain  of  the  Alfred  Lamont.  It  was 
argued  with  great  force  by  Mr.  ]\Iellish,  that  the  captain  of  the  Al- 
fred Lamont  had  no  right  to  sell  those  coals,  and  consequently  that 
the  company  purchasing  them,  with  notice  of  the  facts  (if  notice  was 
material),  were  guilty  of  a  conversion,  and  liable  in  trover  to  the  true 
owner  of  the  goods.  I  am  not  prepared  to  dissent  from  this  view  of 
the  case,  but  it  is  not  necessary  to  decide  this  point.  If  it  were  nec- 
essary, I  should  wish  to  consider  the  grounds  of  my  opinion  with  some 
care,  and  state  them  at  length,  as  some  of  the  points  involved  are  of 
great  importance  and  great  difficulty.  But  if  I  am  right  in  the  con- 
struction I  have  put  upon  the  contract,  the  goods  were  not  at  the  time 
of  the  sale  the  property  of  De  Mattos,  and  he,  at  all  events,  can  main- 
tain no  action  for  their  conversion. 

The  result  is,  that  in  each  of  the  cross-actions  there  should,  in  my 
opinion,  be  judgment  for  the  defendants. 

In  the  action  by  the  company  against  De  Mattos,  judgment  for  De 
Mattos. 

In  the  action  by  De  Mattos  against  the  company,  judgment  for  the 
company.^ 

3  Opinions  were  also  delivered  by  Wightman,  J.,  and  Cockburn,  0.  J.,  both 
of  whom  held  that,  though  the  property  in  the  coals  passed  to  the  company 
on  the  shipment  and  delivery  of  the  shipping  documents,  De  Mattos  was 
bound  to  deliver  them  at  Rangoon,  and,  having  failed  to  do  so,  he  was  liable 
to  refund  the  half  of  the  purchase  money  which  he  had  received  and  to  pay 
any  damages  arising  from  the  nondelivery.  Mellor,  J.,  concurred  in  the  opin- 
ion of  Blackburn,   J. ;    but  tlie  court  being  evenly  divided,  he,  being  junior 


320  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  (Ch.  3 


McNEAL  V.  BRAUN. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1S91.     53  N.  J.  Law,  617,  23 
Atl.  687,  26  Am.  St  Rep.  441.) 

De;pue,  J.*  Braun,  the  plaintift  below,  in  1883,  was  a  wholesale 
dealer  in  coal  at  Philadelphia.  McNeal,  who  is  now  plaintiff  in  error, 
was  engaged  in  the  foundry  business  at  Burlington,  in  this  state.  On 
the  14th  of  June,  1883,  McNeal  ordered  from  the  plaintiff  98  tons 
of  lump  and  steamboat  coal,  to  be  delivered  at  Burlington,  at  $4.10  a 
ton,  delivered.  The  coal  was  shipped  in  a  barge  called  "The  Way- 
ward" on  the  21st  of  June.  The  barge  arrived  at  Burlington  on  the 
23d,  but  it  was  not  until  the  26th  that  she  was  laid  along-side  of  the 
wharf.  On  the  afternoon  of  that  day  the  defendant's  foreman  notified 
the  captain  of  the  barge  to  place  it  along-side  of  the  defendant's  wharf. 
In  order  that  the  boat  might  be  so  placed  that  the  steam-hoist  could 
be  used  for  unloading,  the  boat  was  separated  into  its  two  parts. 
The  forward  part  was  made  fast  to  the  wharf,  being  separated  from 
the  wharf  by  a  float  about  three  feet  wide,  furnished  by  the  defend- 
ant, for  the  purpose  of  steadying  the  boat  in  a  position  that  was  nec- 
essary for  the  working  of  the  iron  buckets  on  the  steam  elevator.  The 
after-part  of  the  boat  was  moored  on  the  river  side  of  the  other  part. 
When  the  forward  compartment  of  the  boat  was  placed  in  position 
the  buckets  of  the  hoisting  works  were  lowered  upon  the  boat,  and 
preparations  were  made  by  the  defendant's  servants  for  unloading 
the  coal.  They  completed  their  preparations  about  10  minutes  before 
6  o'clock,  and  stopped  work  at  6,  the  usual  time  for  quitting  work. 
During  the  night  this  compartment  of  the  boat  sank,  with  the  coal 
that  was  in  it.  The  compartment  that  was  moored  in  the  river  re- 
mained in  safety.  After  the  sinking  of  the  forward  compartment,  the 
coal  that  was  in  the  other  compartment  was  unloaded  and  taken  by  the 
defendant. 

The  suit  was  for  the  whole  quantity  of  coal  sold,  but  the  contro- 
versy at  the  trial  was  with  respect  to  the  coal  that  was  sunk  and  en- 
tirely lost.  Under  the  charge  of  the  court  the  jury  found  for  the 
plaintiff'  the  full  contract  price  for  the  entire  shipment.  The  order  for 
the  coal  was  given  by  the  defendant  to  Arkless,  the  agent  of  the  plain- 
tiff, at  the  plaintiff's  place  of  business  in  Philadelphia.  The  order 
was  for  a  cargo  of  coal  of  an  approved  size  and  quality.  The  coal 
was  not  at  that  time  separated  from  the  plaintift"'s  stock  on  hand. 
The  price  to  be  paid  was  $4.10  per  ton,  delivered  at  Burlington.  The 
carrier  was  selected  by  the  plaintiff',  and  he  took  from  him  a  bill  of 

judge,  \^i.thdrew  his  opinion.     Judgment  was  entered  in  the  first  action,  for 
the  plaintiti's ;    in  the  second  action,  for  the  defendants.     In  the  Exchequer 
Chamber  (33  L.  J.  Q.  B.  214),  the  judgment  in  the  first  action  was  reversed; 
in  tlie  second  action,  affirmed. 
4  Part  of  the  opinion  is  omitted. 


Ch.  3)  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  321 

lading,  signed  by  the  master  in  these  words :  "Shipped  by  Charles 
Braun,  in  good  order,  on  board  the  boat  called  'Wayward,'  now  lying 
at  Philadelphia,  and  bound  for  Burlington,  N.  J.,  ninety-eight  tons 
of  Thomas  Lehigh  coal,  which  I  promise  to  deliver  at  the  aforesaid 
port  of  Burlington  in  like  good  order,  the  dangers  of  the  seas  only 

excepted,  unto  A.  H.  McNeal,  or  assigns,  he  or  they  paying 

freight  for  the  same  at  the  rate  of  twenty  one-hundredths  dollars  per 
ton.     *     *     * 

25  tons  lump. 

73  tons  steam-boat.     Captain  to  tend  guy. 

9S" 

The  contract  price  of  $4.10  a  ton  was  the  price  of  the  coal  delivered 
at  Burlington.  If  the  defendant  paid  freight  pursuant  to  the  direc- 
tion in  the  bill  of  lading,  the  freight  paid  was  to  be  deducted  from 
the  contract  price. 

Responsibility  for  loss  in  transportation,  in  carriage  by  sea,  has  oc- 
casioned considerable  discussion  in  the  English  courts.     The  rules  on 
this  subject  are  stated  by  Lord  Cottenham  in  Dunlop  v.  Lambert,  6 
Clark  &  F.  600-62L  and  by  the  court  of  queen's  bench  and  the  ex- 
chequer chamber  in  Navigation  Co.  v.  De  Mattos,  32  Law  J.  Q.  B. 
332,  33  Law  J.  Q.  B.  214;   and  particularly  by  Mr.  Justice  Blackburn, 
whose  opinion  in  that  case  is  quoted  at  considerable  length  in  1  Benj. 
Sales,  (Corbin's  Ed.)  §  503,  and  more  fully  in  Blackb.  Sales,  (Black- 
stone  Ed.)  234.    It  is  sometimes  stated  as  a  general  rule  that  delivery  \ 
to  the  carrier  is  delivery  to  the  consignee,  and  that  the  goods  are  to   I 
be  carried  to  their  destination  at  his  risk.     But  an  examination  of    \ 
the  decisions  to  that  effect  will  show  that  this  doctrine  prevails  .only 
where  the  contract  of  sale,  as  between  the  consignor  and  consignee, 
was  concluded  at  the  place  of  shipment,  and  the  undertaking  to  ship 
was  collateral  to  the  contract  of   sale,  as  in  Tregelles  v.   Sewell,  7 
Hurl.  &  N.  573.    It  will  also  be  found  that  the  rule  uniformly  adopted  \ 
in  the  line  of  decisions  is  that  the  risk  of  loss  in  transportation  depends  I 
upon  the  nature  of  the  transaction,  the  terms  of  the  contract,  and  the  ' 
intention  of  the  parties.     *     *     * 

It  was  undisputed  in  the  case  now  before  the  court,  and  in  fact 
was  conceded  by  the  plaintiff's  counsel,  that  delivery  of  the  coal  by 
the  plaintiff  at  Burlington,  at  his  own  expense,  was  a  material  term 
in  the  contract  of  sale.  Under  a  contract  of  this  sort,  delivery  of  the 
coal  on  board  the  barge  was  delivery  to  the  master,  as  the  plaintiff's 
bailee  or  agent,  to  perform  for  him  the  act  of  delivery  in  execution 
of  his  contract.  1  Benj.  Sales,  (Corbin's  Ed.)  §  556.  Meanwhile,  and 
until  delivery  was  consummated  in  such  a  manner  as  to  be  effectual  as 
between  vendor  and  purchaser,  the  coal  was  at  the  plaintiff's'  risk. 

On  the  main  issue,  which  the  learned  judge  declared  to  be  the  ques- 
tion, whose  loss  was  the  coal  which  sank?  his  instruction  was  that  this 
WooDw.  Sales — 21 


322  DESTRUCTION    OF   THE    GOODS — RISK  OF    LOSS  (Ch.  3 

issue  would  depend  upon  whether  the  sale  had  been  completed  before 
the  loss  occurred ;  that  where  parties  have  bargained,  the  one  that  he 
will  sell  and  the  other  that  he  will  buy,  the  duty  rests  upon  the  seller 
to  deliver  the  article  in  pursuance  of  the  agreement  he  has  made,  and 
that  to  complete  the  sale  there  must  be  an  acceptance  by  the  pur- 
:haser  of  the  article  which  he  purchased,  in  accordance  with  that 
agreement;  that  when  that  has  been  done  "the  sale  is  completed, 
ind  any  loss  after  that  time  falls  upon  the  man  who  bought.  I  mean, 
"any  loss  which  is  the  result  of  no  wrongful  or  intentional  negligence 
of  the  parties." 

The  court  also  instructed  the  jury  that,  if  there  was  an  acceptance 
by  the  defendant,  then  the  position  of  the  captain  became  changed, 
and  his  duty  as  the  agent  of  the  plaintiff  was  at  an  end;  and  this 
question  was  left  to  the  jury  upon  the  acts  and  conduct  of  the  defend- 
ant's servants  before  they  stopped  work  that  night,  with  the  instruc- 
tion that  if  the  jury  should  determine  from  the  testimony  "that  the 
defendant  or  his  employes  so  acted  that  they  recognized  that  that  coal 
was  there  at  their  disposal,  under  their  dominion,  within  their  power, 
and  that  they  so  acted  as  to  show  that  they  were  dealing  with  it  as  if 
it  were  McNeal's,  from  those  acts  you  may  determine  that  there  was 
an  acceptance  of  the  coal,  as  being  the  coal  which  had  been  bought 
under  that  bargain." 

The  transaction  between  the  parties  was  an  order  for  a  certain 
quantity  of  coal,  part  lump  coal  and  part  steam-boat  coal,  of  an  ap- 
proved quality.  It  was,  in  effect,  a  contract  of  sale  by  sample.  On 
/such  a  sale  of  goods,  it  is  a  condition  implied  by  law  that  the  buyer 
Ishall  have  a  fair  opportunity,  by  examining  the  goods,  to  satisfy  him- 
Iself  that  they  are  in  accordance  with  the  contract.  2  Benj'.  Sales 
(Corbin's  Ed.)  §§  910,  1025,  1042;  Isherwood  v.  Whitmore,  11  I\Iees. 
&  W.  347;  Startup  v.  McDonald,  6  Man.  &  G.  593;  Croninger  v. 
Crocker,  62  N.  Y.  152.  And  under  a  shipment  of  goods  by  a  carrier 
the  consignee  is  entitled  to  inspect  and  examine  the  goods,  to  ascer- 
tain whether  they  correspond  with  the  invoice,  and  to  a  reasonable 
time  within  which  to  receive  and  remove  the  goods.  For  that  pur- 
pose a  reasonable  time  within  usual  business  hours  must  be  allowed, 
and  during  that  period  the  liability  of  the  carrier  as  carrier  remains 
undischarged.  Bradstreet  v.  Heron,  Abb.  Adm.  209,  214;  Manu- 
facturing Co.  v.  The  Tangier,  1  Cliff.  396,  Fed.  Cas.  No.  12,266 ;  Dib- 
ble V.  Morgan,  1  Woods,  406,  Fed.  Cas.  No.  3,881 ;  The  Tybee,  1 
Woods,  358-363,  Fed.  Cas.  No.  14,304;  The  Iddo  Kimball,  8  Ben. 
297,  Fed.  Cas.  No.  7,000;  5  Myer,  Fed.  Dec.  "Carriers,"  §§  802,  803, 
846,  852,  1008;  The  Eddy,  5  Wall.  481^93,  18  L.  Ed.  486;  Price 
V.  Powell,  3  N.  Y.  322;  Dunham  v.  Railroad  Co.,  46  Hun  (N.  Y.) 
245 ;  Miller  v.  Navigation  Co.,  10  N.  Y.  431 ;  Hedges  v.  Railroad  Co., 
6  Rob.  (N.  Y.)  119,  reversed  in  court  of  appeals,  but  not  on  this  point, 
49  N.  Y.  223 ;    Moses  v.  Railroad  Co.,  32  N.  H.  523.  64  Am.  Dec. 


Ch.  3)  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  323 

381;  Graves  v.  Steam-Boat  Co.,  38  Conn.  143-152,  9  Am.  Rep.  369; 
Richardson  v.  Goddard,  23  How.  28-39,  16  L.  Ed.  412;  Bourne  v. 
Gatliffe,  3  Man.  &  G.  643-687,  11  Clark  &  F.  45-70;  3  Lewis,  Ann. 
R.  &  Corp.  R.  54,  note  to  Railroad  Co.  v.  Ludden,  (Ala.)  reported 
in  7  South.  471. 

The  acts  done  by  the  defendant's  servants  before  they  quit  work 
were  of  a  two-fold  character :  First.  In  directing  the  barge  to  be  laid 
along-side  of  the  wharf  for  unloading.  The  captain  made  the  boat 
fast  to  the  wharf,  and  remained  in  charge  during  the  night.  The 
designation  by  the  defendant  of  his  wharf  as  the  place  for  unloading 
was  an  act  in  performance  of  the  defendant's  duty,  as  consignee,  to 
provide  a  place  for  the  discharge  of  the  cargo.  Second.  In  the  prep- 
arations for  unloading.  The  barge  was  laid  along-side  the  float  about 
10  minutes  before  6.  The  buckets  were  lowered  down  upon  the  barge, 
and  possibly  a  small  quantity  of  coal  was  unloaded.  The  hands  quit 
work  at  6,  and  replaced  the  buckets  on  the  wharf.  In  these  acts 
there  was  no  evidence  of  an  acceptance  of  the  entire  cargo,  nor  of  a 
discharge  of  the  carrier  from  his  responsibility.  Under  the  rules  of 
law  I  have  stated,  the  defendant  was  entitled  to  a  reasonable  oppor- 
tunity to  unload  the  entire  cargo  for  examination  to  ascertain  whether 
the  coal  corresponded  with  his  order,  and  had  arrived  in  good  condi- 
tion. By  law  he  was  secured  these  rights  without  discharging  the 
liability  of  the  carrier.  Even  if  the  goods  had  been  accepted  so  as  to 
pass  title  as  between  vendor  and  purchaser,  the  defendant,  under  the 
plaintiff's  undertaking  to  deliver  them  at  Burlington,  still  had  a  right 
to  a  reasonable  time  to  unload  them  under  the  plaintiff's  contract  to 
transport  and  deliver  the  goods.     *     *     * 

Judgment  reversed. 


MARTINEAU  et  al.  v.  KITCHING. 
(Court  of  Queen's  Bench,  1S72.     L.  R.  7  Q.  B.  436.) 

Action  to  recover  the  price  of  sugars  sold  by  plaintiffs  to  defendant. 

The  plaintiffs,  sugar  refiners,  were  in  the  habit  of  selling  to  brokers 
the  whole  of  each  filling  of  sugar,  consisting  of  from  200  to  300 
loaves  or  "titlers"  each,  the  terms  always  being  "Prompt  at  one 
month;  goods  at  seller's  risk  for  two  months,"  the  "prompt"  day 
being  the  Saturday  next  after  the  expiration  of  one  month  from  the 
sale.  The  titlers  in  each  filling  were  stored  on  the  plaintiffs'  premises, 
and  were  from  time  to  time  fetched  away  by  the  purchasers  or  their 
subvendees,  being  weighed  on  their  removal,  each  titler  weighing 
from  thirty-eight  to  forty-two  pounds.  If  the  whole  of  the  lots  con- 
tained in  one  sale-note  had  not  (which  was  frequently  the  case)  been 
taken  away  on  the  "prompt"  day  payment  was  made  by  the  pur- 
chaser  (by  bill  or  cash)   at   an   approximate   sum   calculated  on   the 


324  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  (Cll.  3 

probable  weight,  the  actual  price  being  afterwards  adjusted  on  the 
whole  filling  being  cleared. 

The  defendant,  who  was  an  old  customer  of  the  plaintiffs,  had 
bought  four  fillings,  consisting  of  specific  titlers,  each  marked  on 
the  above  terms,  and  had  paid  the  approximate  price  of  the  four  lots, 
and  had  fetched  some  of  each  lot  away.  A  fire  occurred  on  the  plain- 
tiffs' premises  after  the  expiration  of  the  two  months  from  the  dates 
of  sale  to  the  defendant,  destroying  the  whole  contents  of  the  ware- 
houses. At  the  time  of  the  fire  the  plaintiffs  had  floating  policies  of 
insurance  which  covered  goods  on  the  premises  "sold  and  paid  for,  but 
not  removed;"  but  they  had  no  agreement  or  understanding  with 
their  customers  as  to  any  insurance;  and  the  amount  insured,  which 
the  plaintiffs  received  from  the  underwriters,  was  not  sufficient  to 
cover  the  loss  of  their  own  goods,  exclusive  of  the  titlers  undelivered 
which  they  had  sold  to  the  defendant.^ 

Blackburn,  J.  I  am  also  of  opinion  that  our  judgment  must  be 
in  favour  of  the  plaintiff's.  The  case  arises  in  this  way.  [The 
learned  judge  referred  to  par.  21,  and  stated  the  facts.]  The  dif- 
ficulty which  is  raised  is,  that  these  goods  had  perished  before  they 
were  actually  weighed;  and  two  points  were  made  by  Mr.  Brown; 
he  contended  that  because  they  had  not  been  weighed  the  property 
had  not  passed,  and  that  it  therefore  followed,  as  an  inexonerable 
rule  of  law,  that  they  were  not  to  be  paid  for,  because  they  were 
still  the  property  of  the  plaintiff's.  This,  however,  I  do  not  think 
is  the  correct  way  of  putting  the  case,  and  I  do  not  think  that  we 
need  decide  whether  the  property  passed  or  not.  As  a  general  rule, 
res  perit  domino,  the  old  civil  law  maxim,  is  a  maxim  of  our  law ; 
and  when  you  can  shew  that  the  property  passed  the  risk  of  the  loss, 
prima  facie,  is  in  the  person  in  whom  the  property  is.  If,  on  the 
other  hand,  you  go  beyond  that,  and  shew  that  the  risk  attached  to 
the  one  person  or  the  other,  it  is  a  very  strong  argtuiient  for  shewing 
that  the  property  was  meant  to  be  in  him.  But  the  two  are  not  in- 
separable. It  may  be  very  well  that  the  property  shall  be  in  the  one 
and  the  risk  in  the  other. 

In  the  present  case  I  think  all  that  is  necessar}'  to  decide  is,  that 
the  risk  was  not  in  the  sellers.  When  the  first  month  had  elapsed, 
and  payment  had  been  made,  still  the  buyers  had,  from  their  express 
stipulation,  a  right  to  have  the  goods  remain  a  month  at  the  refiners' 
warehouse  at  the  refiners'  risk.  Let  us  suppose  that  the  refiners  had 
become  bankrupt.  If  in  consequence  of  the  risk  being  in  the  refiners, 
which  by  this  stipulation  it  clearly  would  be  during  the  two  months, 
■  the  property  was  still  in  the  refiners,  their  assignees  in  bankruptcy 
would  take  the  entire  property,  and  the  buyers,  who  had  paid  the  ap- 
proximate price,  would  be  obliged  to  come  in  and  prove,  and  get  so 

5  This  statement  of  the  facts  is  tiiken  from  the  headnote.  Part  of  the 
opinion  is  omitted. 


Ch.  3)  DESTRUCTION    OF    THE    GOODS RISK   OF    LOSS  325 

many  shillings  in  the  pound  as  they  might  be  able  to  prove  for.  That 
would  be  a  monstrous  hardship,  and  in  such  a  case  as  that  I  should 
be  very  much  inclined  to  struggle  very  hard  to  find  any  legal  reason 
for  saying  that,  though  the  risk  remained  in  the  sellers,  yet  the  prop- 
erty had  passed  to  the  buyers  as  soon  as  they  had  made  the  payment. 
If  the  question  arose  in  such  a  case  as  that,  I  am  rather  inclined  to 
think  it  would  be  necessary  to  look  carefully  into  Simmons  v.  Swift, 
5  B.  &  C.  857,  and  some  other  cases,  to  see  if  one  could  decide  that 
the  property  had  passed.  But  in  this  case  that  does  not  arise ;  the 
second  of  the  two  months  had  elapsed,  during  which  the  stipulation 
was  that  the  goods  were  to  be  at  the  sellers'  risk.  I  think  expressio 
unius  est  exclusio  alterius.  I  cannot  construe  that  stipulation,  ex- 
cept as  implying  that  at  the  expiration  of  the  two  months  the  goods 
are  to  be  at  the  buyer's  risk.  That  construction  would  be  greatly 
fortified,  if  it  required  fortification,  by  the  fact  that  at  the  end  of 
the  two  months  the  sellers  did  send  a  note  to  remind  the  buyer  that 
the  goods  are  at  his  risk ;  and  this  being  a  stipulation  between  two 
parties,  who  are  both  sui  juris,  that  they  are  to  be  at  the  buyer's  risk 
after  the  two  months,  the  question  is,  is  that  effectual  at  law  ? 

Mr.  Brown's  argument  was,  that  the  goods  must  be  at  the  sellers' 
risk,  because,  as  he  contended,  the  property  had  not  passed  to  the 
buyer.  I  have  already  intimated  that,  if  it  were  necessary,  I  should 
consider  very  long  before  I  said  that.  However,  assume  that  it  had 
not  passed.  If  the  agreement  between  the  parties  was,  'T  contract 
that  when  you  pay  the  price  I  will  deliver  the  goods  to  you,  but  the 
property  shall  not  be  yours,  they  shall  still  be  my  property  so  that 
I  may  have  dominion  over  them ;  but  though  they  shall  not  be  yours, 
I  stipulate  and  agree  that  if  I  keep  them  beyond  the  month  the  risk 
shall  be  upon  you ;"  and  then  the  goods  perish ;  to  say  that  the  buyer 
could  then  set  up  this  defence  and  say,  'Although  I  stipulated  that 
the  risk  should  be  mine,  yet,  inasmuch  as  an  accident  has  happened 
which  has  destroyed  them,  I  will  have  no  part  of  that  risk,  but  will 
throw  it  entirely  upon  you  because  the  property  did  not  pass  to  me," 
is  a  proposition  which  stated  in  that  way,  appears  to  be  absolutely  a 
a  reductio  ad  absurdum ;  and  that  is  really  what  the  argument 
amounts  to.  If  the  parties  have  stipulated  that,  if  after  the  two 
months  the  goods  remain  in  the  sellers'  warehouse,  they  shall,  never- 
theless, remain  there  at  the  buyer's  risk,  it  would  be  a  manifest  ab- 
surdity to  say  that  he  is  not  to  pay  for  them ;  and  I  think  the  case 
of  Castle  V.  Playford,  Law  Rep.  7  Ex.  98,  is  a  clear  authority  oi\ 
the  Court  of  Exchequer  Chamber,  that  where  the  parties  have  stip- 
ulated that  the  risk  shall  be  on  one  side,  it  matters  not  whether  the 
property  had  passed  or  not.  The  parties  here  have  by  their  express 
stipulation  impliedly  said,  after  the  two  months  the  goods  shall  be 
at  the  risk  of  the  buyer,  consequently  it  is  the  buyer  who  must  bear 
the  loss. 


326  DESTRUCTION    OF    THE    GOODS — RISK  OF    LOSS  (Ch.  3 

Then  Mr.  Brown  said,  "But  how  can  the  buyer  pay  when  he  was 
to  pay  at  47s.  per  cwt.,  and  the  goods  have  never  been  weighed,  and 
therefore  it  would  never  be  known  with  certain  precision  how  many 
cwt.  there  were?"  I  answer  to  that,  in  the  first  place,  that  the  point 
is  concluded  by  the  authority  of  Alexander  v.  Gardner,  1  Bing.  N.  C. 
671,  Turley  v.  Bates,  2  H.  &  C.  200;  33  L.  J.  (Ex.)  43,  and  the  re- 
cent case  of  Castle  v.  Playford,  Law  Rep.  7  Ex.  98  in  the  Exchequer 
Chamber,  which  all  go  to  shew  that  where  the  price  is  not  ascer- 
tained and  it  could  not  be  ascertained  with  precision  in  consequence 
of  the  thing  perishing,  nevertheless  the  seller  may  recover  the  price, 
if  the  risk  is  clearly  thrown  on  the  purchaser,  by  ascertaining  the 
amount  as  nearly  as  you  can. 

There  is  another  reason  which  in  this  case  would  clearly  apply — 
the  delay  in  weighing  is  quite  as  much  the  fault  of  the  purchaser  as 
of  the  sellers.  When  the  prompt  day  comes  the  sellers  have  a  right 
to  require  that  the  goods  should  be  weighed  at  once,  so  as  to  ascer- 
tain the  price,  and  to  have  it  paid  to  the  last  farthing.  It  may  be  for 
the  mutual  convenience  of  both  parties ;  but  still  it  is  the  buyer,  in 
effect,  who  requests  that,  as  he  is  going  to  leave  them  longer,  the 
weighing  should  be  postponed  for  a  time.  Therefore  it  is  in  conse- 
quence of  his  delay  that  the  weighing  does  not  take  place.  Now  by 
the  civil  law  it  always  was  considered  that,  if  there  was  any  weigh- 
ing, or  anything  of  the  sort  which  prevented  the  contract  being  per- 
fecta  emptio,  whenever  that  was  occasioned  by  one  of  the  parties  be- 
ing in  mora,  and  it  was  his  default,  though  the  emptio  is  not  perfecta, 
yet  if  it  is  clearly  shewn  that  the  party  was  in  mora,  he  shall  have 
the  risk  just  as  if  the  emptio  was  perfecta.  That  is  perfectly  good 
sense  and  justice,  though  it  is  not  necessary  to  the  decision  of  the 
present  case,  that,  when  the  weighing  is  delayed  in  consequence  of  the 
interference  of  the  buyer,  so  that  the  property  did  not  pass,  even  if 
there  were  no  express  stipulation  about  risk,  yet  because  the  non- 
completion  of  the  bargain  and  sale,  which  would  absolutely  transfer 
the  property,  was  owing  to  the  delay  of  the  purchaser,  the  purchaser 
should  bear  the  risk  just  as  much  as  if  the  property  had  passed.  The 
inclination  of  my  opinion  is,  as  I  have  said,  that  the  property  is  in 
the  purchaser,  but  we  need  not  decide  that  at  all  to-day,  and  it  might 
require  some  consideration  to  see  how  far  the  case  of  Simmons  v. 
Swift,  5  B.  &  C.  857,  really  governs  the  case.     *     *     * 

Judgment  for  the  plaintiffs. ** 

6  Concurring  opinions  were  delivered  by  Cockburn,  C.  J.,  and  Lush  and 
Quain,  JJ. 


Ch.  3)  DESTKUCTION   OF  THE   GOODS — EISK   OF  LOSS  327 

BURNLEY  V.  TUFTS. 

(Supreme  Court  of  Mississippi,  18S9.     66  Miss.  4S,  5  South.  627,  14  Am.   St. 

Rep.  540.) 

Appeal  from  Circuit  Court,  Copiah  County ;  J.  T.  Wharton,,  Judge. 

The  appellant,  M.  D.  Burnley,  bought  of  the  appellee,  James  W. 
Tufts,  a  soda  fount,  which  was  to  be  paid  for  by  the  month,  each  of 
said  payments  being  evidenced  by  the  following  promise  in  writing, 
one  given  for  each  month : 
"10.00.  Hazlehurst,  Miss.,  June  5,  1885. 

"For  value  received  — = after  date  I  promise  to  pay  to  the 

order  of  James  W.  Tufts  ten  dollars,  with  interest,  6  per  cent.  The 
consideration  of  this  and  other  notes  is  the  following  described 
soda-water  apparatus:     [Here  follows  description  of  apparatus.] 

"Nevertheless  it  is  understood  and  agreed  by  and  between  me  and 
the  said  James  W.  Tufts  that  the  title  to  the  above-mentioned  prop- 
erty does  not  pass  to  me,  and  that  until  all  said  notes  are  paid  the 
title  to  the  aforesaid  property  shall  remain  in  said  James  W.  Tufts, 
who  shall  have  the  right,  in  case  of  nonpayment  at  maturity  of 
either  of  said  notes,  without  process  of  law,  to  enter  and  retake,  and 
may  enter  and  retake  immediate  possession  of  said  property  wher- 
ever it  may  be,  and  remove  the  same.  Payable  at  the  Merchants' 
and  Planters'  Bank,  Hazlehurst,  Miss.  M.  D.  Burnley." 

Burnley  paid  several  of  these  notes,  and  his  store,  including  the 
soda-water  apparatus,  was  burned,  and  he  refused  to  pay  the  re- 
maining notes  as  they  became  due.  Whereupon  Tufts  brought  suit 
to  enforce  the  payment  of  said  remaining  notes,  and  recovered  judg- 
ment, from  which  Burnley  appealed. 

Cooper,   J.      Burnley   unconditionally   and   absolutely  promised  to 
pay  a  certain  sum  for  the  property  the  possession  of  which  he  re- 
ceived from  Tufts.     The  fact  that  the  property  has  been  destroyed 
while  in  his  custody,  and  before  the  time  for  the  payment  of  the  notes 
last  due,  on  payment  of  which  only  his  right  to  the  legal  title  of  the 
property  would  have  accrued,  does  not  relieve   him  of  payment  of 
the  price  agreed  on.     He  got  exactly  what  he  contracted  for,  viz., 
the  possession  of  the  property,  and  the  right  to  acquire  an  absolute 
title  by  payment   of  the  agreed  price.     The  transaction   was  some- 
thing more  than  an  executory  conditional  sale.     The  seller  had  dom 
all  that  he  was  to  do  except  to  receive  the  purchase  price ;   the  pur- 
chaser had  received  all  that  he  was  to  receive  as  the  consideration  oi 
his  promises  to  pay.    The  inquiry  is  not  whether,  if  he  had  foreseen' 
the  contingency  which  has  occurred,  he  would  have  provided  against 
it,  nor  whether  he  might  have  made  a  more  prudent  contract,  but  it 
is  whether  by  the  contract  he  has  made  his  promise  is  absolute  or 
conditional.     The  contract  made  was  a  lawful  one,  and  as  we  have 
said,  imposed  upon  the  buyer  an  absolute  obligation  to   pay.     To 


328  DESTRUCTION    OF   THE    GOODS — RISK    OF   LOSS  (Ch.  3 

relieve  him  from  this  obligation  the  court  must  make  a  new  agree- 
ment for  the  parties,  instead  of  enforcing  the  one  made,  which  it 
cannot  do.     Manufacturing  Co.  v.  Cole,  4  Lea  (Tenn.)  439,  40  Am. 
Rep.  20;    Keitt  v.  Counts,  15  S.  C.  493. 
The  judgment  is  affirmed.^ 


FARMERS'  &  MECHANICS'  BANK  v.  LOGAN. 

(Court  of  Appeals  of  New  York,  1878.     74  N.  Y.  568.) 
See  ante,  p.  156,  for  a  report  of  this  case.® 


McCONIHE  V.  NEW  YORK  &  E.  R.  CO. 

(Court  of  Appeals  of  New  York,  1859.     20  N.  Y.  495,  75  Am.  Dec.  420.) 

Appeal  from  the   Supreme   Court. 

Action  to  recover  dam,ages  upon  a  contract  made  between  Mal- 
lorj,  the  plaintiffs  assignor,  and  the  defendant,  in  December,  1849, 
by  which  Mallory  was  to  furnish  materials  and  build  fifteen  lumber 
cars  for  the  defendant,  for  four  hundred  and  seventy-five  dollars  per 
car,  to  be  paid  for  in  six  months  from  the  average  delivery.  The 
contract  was  subsequently  so  modified  that  the  company  agreed  to 
furnish  for  the  cars  the  iron  boxes  of  a  peculiar  model  manufactured 
by  the  company,  the  expense  of  the  boxes  to  be  taken  from  the 
price  of  the  cars.  One  four-wheel  car  was  to  be  completed  in  thirty 
days,  and  one  on  each  day  thereafter  till  the  whole  number  should 
be  completed.  Mallory  commenced  the  work  immediately,  and  at 
great  expense  selected  and  purchased  the  materials  (except  the  boxes) 
expressly  for  the  cars.  INIallory  set  up  seven  of  the  cars  and  had  the 
work  ready  to  set  up  the  others,  and  those  set  up  were  completed  as 
far  as  it  was  possible  without  the  boxes,  which  the  company  neg- 
lected to  furnish.  The  company  did  not  manufacture  the  boxes,  but 
they  were  and  could  be  made  only  by  one  Brandt,  and  he  was  in 
the  employment  of  the  defendant.  Had  the  company  furnished  the 
boxes  all  the  cars  could  have  been  completed  by  the  1st  of  March, 
1850,  but  in  fact  were  not.  The  labor  as  far  as  proceeded  with  was 
performed  at  great  inconvenience,  in  consequence  of  the  boxes  not 
having  been  furnished.    Mallory  expended  for  materials  for  the  cars, 

7  Compare  J.  M.  Arthur  &  Co.  v.  Blackman  (C.  C.)  63  Fed.  536  (1894).  In 
Hollenberg  ]Music  Co.  v.  Barron,  100  Ark.  403.  140  S.  W.  582.  36  L.  R.  A. 
(N.  S.)  594  (1911),  it  was  held  that  the  destruction  of  goods  which  had  been 
retaken  by  the  seller  because  of  the  buyer's  default  did  not  relieve  the  buyer 
from  the  obligation  to  pay  the  balance  of  the  price. 

s  And  see.  further,  ns  to  li-^'^  -if  loss  where  goods  are  shipped  under  a  bill 
of  lading,  Williston,  Sales,  §  305. 


Ch.  3)  DESTRUCTION   OF   THE    GOODS — RISK   OF   LOSS  329 

and  in  labor  upon  their  construction,  &c.,  the  sum  of  $2,159.54.  He 
was  unable  to  obtain  insurance  upon  the  materials  and  property. 
From  the  1st  of  March,  1850,  to  the  18th  May  following,  the  cars 
remained  in  that  condition,  while  Mallory  was  repeatedly  urging  the 
company  to  furnish  the  boxes.  On  the  18th  of  May,  1850,  without 
any  carelessness  on  the  part  of  Mallory,  all  the  cars  and  materials, 
except  the  iron,  were  consumed  by  fire,  and  the  irons  were  mate- 
rially injured.  After  the  fire  Mallory  used  such  portion  of  the  iron 
as  was  available,  in  making  other  cars  for  the  company.  Mallory  was 
prevented  from  completing  the  special  contract  by  the  failure  of 
the  defendant  to  furnish  the  boxes  as  agreed  by  it.  No  specific  dam- 
ages for  not  furnishing  the  boxes  were  proved.  Mallory,  before  the 
commencement  of  the  action,  transferred  the  claim  to  the  plaintiff. 

Upon  the  trial  at  the  circuit  the  judge  directed  the  jury  to  ren- 
der a  verdict  for  the  plaintiff  for  $2,159.54,  subject  to  the  opinion  of 
the  court  at  general  term,  with  liberty  to  the  court  to  render  judg- 
ment for  either  party,  and  if  for  the  plaintiff,  then  for  such  sum  as 
the  plaintiff  might  be  entitled  to  recover  on  the  proof  in  the  case. 
The  cause  was  heard  at  the  general  term  in  the  third  district,  where 
the  facts  were  found  as  above  stated,  and  judgment  was  given  thereon 
for  the  defendant,  from  which  the  plaintiff  appealed  to  this  court. 

GrovEr,  J.  The  court  at  General  Term  found  the  fact  that  Mallory 
would  have  completed  the  cars  had  he  not  been  prevented  from  so 
doing  by  the  failure  of  the  company  to  furnish  the  boxes  therefor, 
according  to  their  agreement.  Had  this  been  a  contract  for  work 
and  labor  to  be  performed  by  Mallory  for  the  defendant,  and  he  had 
been  prevented  from  completing  the  contract  by  a  failure  of  the  de- 
fendant to  perform  on  its  part,  he  would  have  been  entitled  to  re|- 
cover  for  wdiat  he  had  done  under  the  contract.  Koon  v.  Greenman, 
7  Wend.  121 ;   Jones  v.  Judd,  4  N.  Y.  412. 

That  is  not  this  case.  Mallory  agreed  to  build  for  the  defendant 
fifteen  lumber  cars,  from  materials  to  be  furnished  by  him,  except 
the  boxes,  which  the  defendant  agreed  to  furnish,  and  the  expense  ' 
of  which  was  to  be  deducted  from  the  price  of  the  cars.  This  was 
in  effect  an  agreement  for  the  sale  of  the  cars,  thereafter  to  be  con- 
structed by  Mallory,  to  the  defendant,  and  did  not  vest  any  property 
in  the  defendant  until  the  cars  were  completed  and  delivered.  An- 
drews V.  Durant,  11  N.  Y.  35,  62  Am.  Dec.  55.  In  that  case  the  au- 
thorities are  cited  and  very  ably  reviewed,  and  it  is  unnecessary 
again  to  examine  them  upon  this  proposition.  It  then  follows  that 
the  cars  set  up,  and  materials  furnished  for  those  not  set  up,  were 
the  property  of  Mallory  at  the  time  of  their  destruction  by  the  fire. 
The  rule  is  that  the  party  in  wh.om  the  title  to  property  is  vested 
must  bear  the  loss  in  case  of  destruction  by  accident. 

This  rule  is  not  questioned  by  the  appellant,  and  it  is  unnecessary 
to  cite  the  cases  establishing  it.     The  defendant  cannot  be  held  liable 


330  DESTKUOTION    OF   THE    GOODS — RISK   OF   LOSS  (Ch.  3 

to  the  plaintiff  for  the  value  of  the  property  destroyed  upon  the 
ground  that  the  title  had  been  transferred  by  IMallory  to  the  com- 
pany. The  ground  of  Hability  of  the  defendant,  for  the  property  de- 
stroyed, if  any,  is  that  the  failure  to  furnish  the  boxes  according  to 
the  agreement  prevented  Mallory  from  completing  and  delivering 
the  cars,  and  rendered  it  necessary  for  him  to  keep  the  property  on 
hand  until  it  was  destroyed  by  the  fire.  But  this  was  not  the  neces- 
sary consequence  of  the  failure  to  deliver  the  boxes.  Mallory  might 
have  rescinded  the  contract  and  proceeded  at  once  for  his  damages. 
The  cars  and  materials  would  have  remained  his  property  and  he 
could  have  made  any  use  of  them  he  chose.  He  could  have  recov- 
ered from  the  defendant  the  contract  price  for  the  cars,  deducting 
therefrom  what  it  would  have  cost  to  complete  them,  and  the  value 
of  the  materials  provided  for  the  cars  in  the  condition  they  then  were. 
But  Mallory  was  not  obliged  to  take  this  course.  He  could  insist 
upon  completing  the  cars,  and  the  defendant  could  not  object  to  the 
delay  in  the  delivery  so  long  as  that  delay  was  occasioned  by  the 
neglect  of  the  company  to  comply  with  the  agreement  on  their  part. 

The  plaintiff  in  this  case  had  not  put  an  end  to  the  contract.  The 
court  find  that  he  repeatedly  called  upon  the  company  to  furnish  the 
boxes  up  to  the  time  of  the  fire.  The  contract  continued  in  full 
force  between  the  parties  to  that  time.  The  fire  was  accidental  and 
had  no  connection  with  the  defendant's  breach  of  the  contract; 
they  are,  therefore,  not  responsible  therefor.  Had  the  defendant 
delivered  the  boxes  on  the  1st  of  May  preceding  the  fire,  and  had 
Mallory  proceeded  to  finish  •  the  .cars  pursuant  to  the  contract,  and 
while  so  proceeding  the  lire  had  occurred,  I  presume  no  one  would 
have  insisted  that  the  defendant  was  liable  for  the  loss.  I  do  not 
see  that  this  case  differs  in  a  legal  view  from  the  one  supposed.  Mal- 
lory was  calling  upon  the  company  for  the  boxes  to  enable  him  to 
complete  the  cars,  electing  to  continue  the  contract  in  force.  This 
disposes  of  the  substantial  rights  of  the  parties. 

The  fact  is  found  that  no  specific  damages  were  proved  to  have 
resulted  from  the  delay  of  the  company  in  delivering  the  boxes. 
The  plaintiff  proved,  and  the  fact  is  found,  that  the  defendant  vio- 
lated its  contract.  The  plaintiff  was,  therefore,  entitled  to  nominal 
damages.  Judgment  should  have  been  given  therefor  for  the  plain- 
tiff. No  important  right  is  affected  by  the  judgment.  The  plain- 
tiff, had  judgment  been  given  for  him  for  a  nominal  sum,  would  still 
have  been  subjected  to  costs.  The  verdict  was  subject  to  the  opinion 
of  the  court.  This  court  should  give  such  judgment  as  the  Supreme 
Court  ought  to  have  given.  I  think  this  a  proper  case  for  the  ap- 
plication of  the  maxim  that  the  law  does  not  regard  trifles,  and  that 
the  judgment  should  be  affirmed. 

Selden,  J.,  expressed  no  opinion;   all  the  other  Judges  concurring. 

Judgment  affirmed. 


Ch.  4)  OBLIGATIONS    OF    SELLER   AND   BUYER  331 

CHAPTER  IV 
OBLIGATIONS  OF  SELLER  AND  BUYER 


SECTION  1.— EXPRESS  WARRANTIES 


WILLISTON  ON  SALES. 

§  195.  Early  Law  of  Warranty. — The  law  of  warranty  is  older  by 
a  century  than  special  assumpsit,  and  the  action  upon  the  case  on  a 
warranty  was  one  of  the  bases  upon  which  the  law  of  assumpsit  seems 
to  have  been  built.  The  action  on  a  warranty  was  regarded  as  an 
action  of  deceit,  and  the  words  "warrantizando  vendidit"  seem  to  have 
been  necessary  to  make  a  good  count  as  the  words  "super  se  assump- 
sit" later  were  in  the  action  of  assumpsit.  The  action  wis  thus  con- 
ceived of  at  the  outset  as  an  action  of  tort.^  This  is,  of  course,  also 
true  of  the  action  of\ assumpsit;  but  it  was  not  long  before  assumpsit 
came  to  be  regarded,  as  it  is  regarded  to-day,  as  distinguished  from 
tort  and  rather  to  be  classed  in  its  essential  nature  with  covenant  than 
with  trespass  on  the  case.  But  the  right  of  action  on  a  warranty  was 
not  regarded  at  once  as  similar  in  its  nature  to  assumpsit.  It  was, 
indeed,  not  until  1778  that  the  first  reported  decision  occurs  of  an  ac- 
tion on  a  warranty  brought  in  assumpsit,"  though  from  the  language 
of  the  court  in  that  case  it  appears  that  the  practice  of  declaring  in 

lAmes  History  of  Assumpsit,  2  Harv.  Law  Rev.  1,  8:  "Notwithstanding 
the  undertaking,  this  action  also  was,  in  its  origin,  a  pure  action  of  tort. 
In  what  is,  perhaps,  the  earliest  reported  case  upon  a  warranty,  Fitz.  Ab. 
Monst  de  Faits,  pi.  160  (13S3),  the  defendant  objects  that  the  action  is  in  the 
nature  of  covenant,  and  that  the  plaintiff  shows  no  specialty,  but  "non  al- 
locatur, for  it  is  a  writ  of  trespass."  There  was  regularly  no  allusion  to  con- 
sideration in  the  count  in  case;  if,  by  chance,  alleged,  it  counted  for  nothing. 
Moor  V.  Russell,  Skin.  104;  s.  c.  2  Show.  284.  How  remote  the  action  was 
from  an  action  of  contract  appears  plainly  from  a  remark  of  Choke,  .7.:  "If 
one  sells  a  thing  to  me,  and  another  warrants  it  to  be  good  and  sufficient, 
upon  that  warranty  made  by  parol,  I  shall  not  have  an  action  of  deceit; 
but  if  it  was  by  deed,  I  shall  have  an  action  of  covenant."  Y.  B.  11  Edw.  IV, 
6,  pi.  11.  That  is  to  say,  the  parol  contract  of  guaranty,  so  familiar  in  later 
times,  was  then  unknown.  The  same  judge,  and  Brian,  C.  J.,  agreed,  al- 
though Littleton,  J.,  inclined  to  the  opposite  view,  that  if  a  servant  warranted 
goods  which  he  sold  for  his  master,  that  no  action  would  lie  on  the  warranty. 
The  action  sounding  in  tort,  the  plaintiff,  in  order  to  charge  the  defendant, 
must  show  in  addition  to  his  undertaking,  some  act  by  him,  that  is,  a  sale ; 
but  the  owner  was  the  seller,  and  not  the  friend  or  servant,  in  the  cases  sup- 
posed. A  contract,  again,  is  properly  a  promise  to  act  or  forbear  in  the 
future.  But  the  action  under  discussion  must  be,  as  Choke,  J.,  said,  in  the 
same  case,  upon  a  warranty  of  a  thing  present,  and  not  of  a  thing  to  come." 

2  Stuart  V.  Wilkins,  1  Doug.  18  (1778). 


332  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

assumpsit  had  been  common  for  some  years  before.  It  is  probable 
that  to-day  most  persons  instinctively  think  of  a  warranty  as  a  contract 
or  promise ;  but  it  is  believed  that  the  original  character  of  the  action 
cannot  safely  be  lost  sight  of,  and  that  the  seller's  liability  upon  a  war- 
ranty may  sound  in  tort  as  well  as  in  contract. 


CHANDELOR  v.  LOPUS. 
(Exchequer  Cliamber,  1625.     Cro.  Jac.  4.) 

Action  upon  the  case :  Whereas  the  defendant  being  a  goldsmith, 
and  having  skill  in  jewels  and  precious  stones,  had  a  stone,  which  he 
affirmed  to  Lopus  to  be  a  bezar-stone,  and  sold  it  to  him  for  one  hun- 
dred pounds ;  ubi  revera,  it  was  not  a  bezar-stone.  The  defendant 
pleaded  not  guilty,  and  verdict  was  given  and  judgment  entered  for 
the  plaintiff  in  the  king's  bench. 

But  error  was  thereof  brought  in  the  exchequer  chamber;  because 
the  declaration  contains  not  matter  sufficient  to  charge  the  defendant, 
viz.  that  he  warranted  it  to  be  a  bezar-stone  or  that  he  knew  that  it 
was  not  a  bezar-stone ;  for  it  may  be  he  himself  was  ignorant  wheth- 
er it  were  a  bezar-stone  or  not. 

And  all  the  justices  and  barons  (except  Anderson)  held,  that  for 
this  cause  it  was  error.  For  the  bare  affirmation  that  it  was  a  bezar- 
stone,  without  warranting  it  to  be  so,  is  no  cause  of  action.  And  al- 
though he  knew  it  to  be  no  bezar-stone,  it  is  not  material.  For  every 
one,  in  selling  his  wares,  w'ill  affirm  that  his  wares  are  good,  or  the 
horse  which  he  sells  is  sound :  yet  if  he  does  not  warrant  them  to  be 
so,  it  is  no  cause  of  action.  And  the  warranty  ought  to  be  made  at 
the  same  time  of  the  sale.  Fitz.  Nat.  Brev.  94,  c.  &  98,  b ;  5  Hen.  7, 
pi.  41;  9  Hen.  6,  pi.  53;  12  Hen.  4,  pi.  1;  42  Ass.  8;  7  Hen.  4, 
pi.  15.  Wherefore,  forasmuch  as  no  warranty  is  alleged,  they  held 
the  declaration  to  be  ill. 

Anderson  to  the  contrary;  for  the  deceit  in  selling  it  as  a  bezar, 
whereas  it  was  not  so,  is  cause  of  action.  But  notwithstanding  it 
was  adjudged  to  be  no  cause,  and  the  judgment  was  reversed. 


CROSS  V.  GARDNER. 

(Court  of  King's  Bench,  1689.     1  Show.  68.) 

Case.  The  declaration  states  that  there  was  a  colloquium  between 
the  plaintiff  and  defendant,  concerning  certain  oxen  in  the  defendant's 
possession  and  sale  of  them ;  that  the  defendant  did  then  and  there 
affirm  them  to  be  his  own ;  that  the  plaintiff  ratione  inde,  did  buy 
them  and  gave  so  much.;  that  in  fact  the  oxen  were  the  property  of 
J.  S.  and  he  seized  and  took  them. 


Sec.  1)  EXPRESS    WARRANTIES  333 

On  the  general  issue  and  verdict  for  the  plaintiff,  it  was  moved  in 
arrest  of  judgment,  that  the  declaration  is  ill,  for  here  is  no  warranty. 
An  affirmance  of  right  will  not  amount  to  it ;  for  it  ought  to  be  war- 
rantizando  vendidit ;  nor  is  here  any  deceit,  for  it  is  not  said,  "know- 
ing them  to  be  none  of  his,"  and  he  might  come  to  their  possession  as 
executor,  or  they  might  be  like  his  own,  and  in  the  night  his  own  re- 
moved, and  these  put  in  their  places,  and  so  he  is  not  guilty  of  any 
falsity. 

E  contra  urged,  that  here  is  a  colloquium  laid  of  them,  and  we 
bought  them  trusting  to  that  affirmation  which  was  false,  and  that  is  a 
deceit.  If  a  man  having  possession  of  goods  sell  them  as  his  own,  an 
action  lies  for  the  deceit. 

And  at  last  upon  much  debate  judgment  was  given  for  the  plaintiff. 
These  cases  were  cited:  Cro.  Jac.  474,  196,  197;  42  Assiz.  8.  Moore, 
126;   Kenrick's  Case,  Roll.  1.  Abr.  96;   Harvey  v.  Young,  Yelv.  40, 


JENDWINE  v.  SLADE. 

(Court  of  King's  Bench,  1797.     2  Esp.  572.) 

This  was  an  action  brought  to  recover  damages  on  the  sale  of  two 
pictures,  one  of  which  was  said  to  be  a  Sea-piece  by  Claud  Loraine, 
the  other  a  Fair  by  Teniers,  which  the  defendant  had  sold  to  the 
plaintiff  as  originals,  when  in  fact  they  were  copies. 

The  defence  relied  on  was,  that  they  were  sold  under  a  catalogue, 
not  amounting  to  an  absolute  warranty,  but  upon  which  the  buyer  was 
to  exercise  his  own  judgment;  and  further,  that  a  bill  had  been  filed 
by  the  defendant,  two  years  ago,  to  compel  the  plaintiff  to  complete 
the  sale ;  to  which  he  had  put  in  no  answer,  but  paid  the  money,  and 
that  therefore  he  could  not  now  seek  to  rescind  the  contract  after  such 
acquiescence 

The  plaintiff's  counsel  answered  this  objection,  by  insisting  that  the 
name  of  the  artist  put  opposite  any  picture  in  a  catalogue  was  a  war- 
ranty ;  and  if  the  article  sold  did  not  correspond  with  it,  it  avoided 
the  sale ;  and  as  to  the  transaction  in  respect  to  paying  the  money,  that 
the  plaintiff  was  deceived,  but  had  brought  his  action  as  soon  as  he 
discovered  the  fraud. 

Several  of  the  most  eminent  artists  and  picture-dealers  were  called, 
who  differed  in  their  opinions  respecting  the  originality  of  the  pic- 
tures. 

When  the  evidence  was  closed, 

Lord  Kknyon  said :  It  was  impossible  to  make  this  the  case  of  a 
warranty;  the  pictures  were  the  work  of  artists  some  centuries  back, 
and  there  being  no  way  of  tracing  the  picture  itself,  it  could  only  be 
matter  of  opinion  whether  the  picture  in  question  was  the  work  of 
the  artist  whose  name  it  bore,  or  not.  What  then  does  the  catalogue 
import?    That,  in  the  opinion  of  the  seller,  the  picture  is  the  work  of 


334  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

the  artist  whose  name  he  has  affixed  to  it.  The  action  in  its  present 
shape  must  go  on  the  ground  of  some  fraud  in  the  sale.  But  if  the 
seller  only  represents  what  he  himself  believes,  he  can  be  guilty  of  no 
fraud.  The  catalogue  of  the  pictures  in  question  leaves  the  deter- 
mination to  the  judgment  of  the  buyer,  who  is  to  exercise  that  judg- 
ment in  the  purchase. 

With  respect  to  the  bringing  of  the  action,  his  Lordship  added,  that 
if  any  fraud  has  been  committed  in  a  sale,  if  the  party  comes  recently 
after  discovery  of  the  deception,  he  is  not  barred  by  circumstances 
having  taken  place,  such  as  were  stated. 

The  cause  was  referred  to  arbitration. 


WOOD  v.  SMITH. 
(Court  of  King's  Bench,  1829.     4  Car.  &  P.  45.) 

Assumpsit.  The  first  count  of  the  declaration  stated,  that,  in  con- 
sideration that  the  plaintiff  would  buy  a  certain  mare  of  the  defend- 
ant, the  defendant  undertook  and  faithfully  promised,  "that  the  said 
mare  was  sound  to  the  best  of  his  knowledge."  And  the  plaintiff 
averred,  that,  confiding,  &c.,  he  bought  the  mare  at  the  price  of  £25. ; 
and  that  the  defendant  did  not,  nor  would  regard  his  said  promise, 
but  subtilely  contriving,  &c.,  deceived  the  plaintiff  in  this,  that  the 
said  mare  was  not  sound,  but,  on  the  contrary  thereof,  was  un- 
sound, as  the  defendant  then  well  knew.  There  were  other  special 
counts,  and  the  money  counts.     Plea — General  issue. 

It  was  proved,  that,  at  the  time  of  the  sale  of  the  mare,  the  plain- 
tiff" said  to  the  defendant,  "She  is  sound  of  course?"  To  which  the 
latter  replied,  "Yes,  to  the  best  of  my  knowledge."  And  on  the  plain- 
tiff saying,  "Will  you  warrant  her?"  the  defendant  said,  "I  never 
warrant,  I  would  not  even  warrant  myself."  Evidence  was  also 
given,  that  the  mare  was  unsound,  and  that  the  defendant  knew  it. 

Gurney,  for  the  defendant,  objected  that  the  declaration  should 
have  been  in  tort  and  not  in  contract,  as  there  was  an  express  refusal 
to  warrant. 

Lord  Tenterden,  C.  J.  I  think  that  this  declarartion  is  sufficient : 
there  is  a  count  on  a  promise,  that  the  mare  was  sound  to  the  best  of 
the  defendant's  knowledge,  with  a  breach,  that  he  knew  her  to  be  un- 
sound. Now,  if  a  man  says,  when  he  sells  a  mare,  "she  is  sound  to 
the  best  of  my  knowledge,  but  I  will  not  warrant  her,"  and  it  turns 
out  that  the  mare  was  unsound,  and  that  he  knew  it,  I  have  no  doubt 
that  he  is  answerable. 

Verdict  for  the  plaintiff,  with  leave  to  move  to  enter  a  nonsuit. 

In  the  ensuing  Term,  Gurney  moved,  in  pursuance  of  the  leave 
given,  contending  that  the  action  should  have  been  in  deceit,  and  not 
in  assumpsit,  because  there  was  an  express  refusal  to  warrant.     He 


Sec.  1)  EXPRESS    WARRANTIES  335 

cited  Williamson  v.  Allison,  2  East,  446,  and  Dobell  v.  Stevens,  5  D. 
&  R.  490. 

Bayi^ey,  J.  The  general  rule  is,  that  whatever  a  person  represents 
at  the  time  of  a  sale,  is  a  warranty.  But  the  party  may  give  either  a 
general  warranty,  or  he  may  qualify  that  warranty.  By  a  general 
warranty,  the  person  warrants  at  all  events ;  but  here  the  defendant 
gives  a  qualified  warranty,  as  he  only  warrants  the  mare  sound  for 
all  he  knows. 

Parke,  J.     I  have  very  frequently  seen  such  counts  as  this. 

Rule  refused. 


POWER  V.  BARHAM. 

(Court  of  King's  Bench,  1S36.     4  Adol.  &  El.  473.) 

Assumpsit.  The  declaration  stated  that,  in  consideration  that 
the  plaintiff,  at  the  defendant's  request,  would  buy  of  him  four  pic- 
tures at  a  certain  price,  to  wit,  &c.,  the  defendant  "promised  the 
plaintiff  that  the  said  pictures  were  painted  by  a  certain  artist  or 
master  in  painting,  called  or  named  Canaletti,  otherwise  Canaletto." 
Breach,  that  the  said  pictures  "were  not,  nor  was  either  of  them, 
painted  by  the  said  artist  or  master  called  or  named  Canaletti,  other- 
wise Canaletto,"  whereby  the  said  pictures  were  and  are  of  little  or 
no  use,  &c.,  and  the  plaintiff  lost  the  benefits,  &c.  Plea,  non  as- 
sumpsit. On  the  trial  before  Coleridge,  J.,  at  the  sittings  in  Mid- 
dlesex after  last  term,  it  appeared  that  the  defendant  sold  the  pictures 
to  the  plaintiff  for  £160.,  and,  at  the  time  of  the  sale,  gave  the  follow- 
ing bill  of  parcels  and  receipt: 

"Mr.  N.  Power. 

"May  14th,  1832.  "^°"^^^  °^  J"  ^"'^^"^- 

Four  pictures.  Views  in  Venice,  Canaletto, il60.0.0 

Settled  by  two  pictures, i  50.0.0 

And  a  bill  at  five  months, 1 10.0.0 


"J.  Barham."  £160.0.0 

A  carver  and  gilder,  who  had  been  employed  by  the  plaintiff  to 
procure  original  pictures  for  him,  gave  evidence  of  previous  repre- 
sentations by  the  defendant  to  him  and  to  the  plaintiff,  that  the  pic- 
tures were  genuine ;  some  doubt,  however,  was  raised  as  to  the  ex- 
pressions actually  used.  The  witness  stated  that  the  pictures  were 
in  the  manner  of  Canaletti,  and,  at  the  time  of  the  sale,  appeared 
to  him  worth  the  money.  A  witness  experienced  in  paintings  stated, 
that  he  considered  the  pictures  not  to  be  Canaletti's,  and  valued  them 
at  about  £8.  each ;  and  some  other  evidence  was  given  on  this  point. 
For  the  defendant  it  was  contended  that  the  bill  of  parcels  was  not  a 


•336  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

warranty,  but  only  an  expression  of  opinion ;  and  Jendwine  v.  Slade, 
2  Esp.  N.  P.  C.  572,  was  cited.  The  learned  Judge,  in  summing  up, 
told  the  jury  that  the  pictures  were  admitted  not  to  be  Canaletti's, 
and  that  the  only  question  on  the  pleadings  was,  whether  the  prom- 
ise was  made ;  and  he  submitted  to  their  consideration,  upon  the 
whole  of  the  evidence,  whether  the  defendant  had  made  a  represen- 
tation as  part  of  his  contract,  that  the  pictures  were  genuine,  not 
using  the  name  of  Canaletti  as  matter  of  description  merely,  or  as 
an  expression  of  opinion  upon  something  as  to  which  both  parties 
were  to  exercise  a  judgment,  but  taking  upon  himself  to  represent 
that  the  pictures  were  Canaletti's.  His  Lordship  noticed  the  argu- 
ment on  behalf  of  the  defendant,  as  to  the  bill  of  parcels ;  and  said 
that  the  words  of  Lord  Kenyon,  in  the  case  referred  to,  must  be  con- 
sidered, not  as  a  general  rule  of  law,  but  as  a  direction  to  the  jury 
on  the  circumstances  of  that  case.  The  jury  found  a  verdict  for  the 
plaintifif,  saying,  "We  think  the  bill  of  parcels  is  a  warranty.'" 

Lord  Denman,  C.  J.  I  think  that  the  case  was  correctly  left  to 
the  jury.  We  must  take  the  learned  Judge  to  have  stated  to  them 
that  the  language  of  Lord  Kenyon  in  Jendwine  v.  Slade,  2  Esp.  N. 
P.  C.  572,  was  merely  the  intimation  of  his  opinion  upon  such  a  con- 
tract as  was  then  before  him.  It  may  be  true,  that  in  the  case  of 
very  old  pictures,  a  person  can  only  express  an  opinion  as  to  their 
genuineness;  and  that  is  laid  down  by  Lord  Kenyon  in  the  case  re- 
ferred to.  But  the  case  here  is  that  pictures  are  sold  with  a  bill 
of  parcels,  containing  the  words  "Four  pictures.  Views  in  \^enice, 
Canaletto."  Now  words  like  these  must  derive  their  explanation 
from  the  ordinary  way  in  which  such  matters  are  transacted.  It 
was,  therefore,  for  the  jury  to  say,  under  all  the  circumstances,  what 
was  the  effect  of  the  words,  and  whether  they  implied  a  warranty  of 
genuineness,  or  conveyed  only  a  description,  or  an  expression  of 
opinion.  I  think  that  their  finding  was  right:  Canaletti  is  not  a 
very  old  painter.^  But.  at  all  events,  it  was  proper  that  the  bill 
of  parcels  should  go  to  the  jury  with  the  rest  of  the  evidence. 

Rule  refused.* 


McFARLAXD  v.  NEW^IAN. 

(Supreme  Court  of  Pennsylvania.  1S39.     9  Watts,  55,  34  Am.  Dec.  497.) 

Newman,  the  plaintiff  below,  brought  an  action  of  assumpsit  against 
McFarland  on  an  alleged  warranty  of  a  horse  passed  to  him  as 
sound  in  all  respects  but  the  colt-distemper.  It  was  proved  that  the 
horse  had  a  defiuxion  from  the  nose  at  the  time  of  the  bargain;   that 

3  Canaletti  died  in  170S:  Claude  Lorraine  and  Teniers  Cthe  younser),  the 
painters  mentioned  in  Jendwine  v.  Slade.  died,  the  first  in  16S2.  the  latter  in 
1G94. 

*  Concurring  opinions  were  delivered  by  Littledale  and  Williams,  JJ. 


Sec.  1)  EXPRESS    WARRANTIES  337 

McFarland  assured  Newman  it  was  no  more  than  the  ordinary  dis- 
temper to  which  cohs  are  subject;  and  that  it  had  been  of  only  a 
few  days'  continuance ;  whereas  it  was  testified  that  the  horse  had 
exhibited  the  same  symptoms  all  the  time  McFarland  had  him  (a  pe- 
riod of  ten  or  eleven  months),  and  the  evidence  was  very  strong  that 
he  had  an  incurable  disease  called  glanders.  It  was  testified  also^ 
that  the  person  of  whom  McFarland  had  him,  had  passed  him  away 
as  a  glandered  horse,  or  at  least  had  refused  to  say  to  McFarland 
that  he  was  otherwise ;  that  McFarland  had  been  told  of  the  true 
nature  of  the  disease  by  another  person ;  and  that  he  himself  had 
said  he  feared  it  was,  or  would  become  something  worse  than  the 
distemper.  The  judge  charged  that  knowledge  of  unsoundness  with- 
out denial  of  it,  would  not  entitle  the  plaintifif  to  recover;  but  that 
"a  positive  averment,  made  by  the  defendant  at  the  time  of  the  con-1 
tract,  of  a  material  fact,  is  a  warranty ;  that  it  is  part  or  parcel  of ' 
the  contract."  The  jury  found  for  the  plaintifif,  assessing  damages 
at  $75 ;   and  the  defendant  tendered  a  bill  of  exceptions. 

Gibson,  C.  J.^  On  no  subject  have  the  decisions  been  so  anoma- 
lous as  on  warranty  of  chattels ;  and  an  attempt  to  arrive  at  a  satis- 
factory conclusion  about  any  principle  supposed  to  be  settled  by  them, 
would  be  hopeless,  if  not  absurd.  Of  such  jarring  materials  have 
they  been  compounded,  that  it  is  impossible  to  extract  from  them  any 
principle  of  general  application ;  and  we  are  left  by  them  in  the 
predicament  of  mariners  compelled  to  correct  their  dead  reckoning  by 
an  observation.  The  civil  law  maxim  is,  doubtless,  that  a  sound 
article  is  warranted  by  a  sound  price ;  but  the  common-law  courts 
started  with  the  doctrine  that  though  the  sale  of  a  chattel  is  fol- 
lowed by  an  implied  warranty  of  title,  and  a  right  of  action  ex 
delicto  for  wilful  misrepresentation  of  the  quality;  yet  that  the  maxim 
caveat  emptor,  disposes  of  all  beside.  Thus  was  the  common  law 
originally  settled ;  and  the  current  of  decision  ran  smooth  and  clear 
in  the  channel  thus  marked  out  for  it,  from  the  days  of  the  year 
books,  till  within  a  few  years  past,  when  it  suddenly  became  turbid 
and  agitated;  and,  as  in  the  case  of  promises  conjured  up  to  elude 
the  Statute  of  Limitations,  it  finally  ran  wild.  The  judges,  in  pur- 
suit of  a  phantom  in  the  guise  of  a  principle  of  impracticable  policy 
and  questionable  morality,  broke  away  from  the  common  law,  not, 
however,  by  adopting  the  civil  law  principle  of  implied  warranty  as 
to  soundness,  but  by  laying  hold  on  the  vendor's  commendation  of  his 
commodity,  and  not  at  first  as  absolutely  constituting  an  express 
warranty  but  as  evidence  of  it. 

I  say  the  policy  of  this  principle  is  impracticable,  because  the  op- 
erations of  commerce  are  such  as  to  require  that  the  rules  for  its 
regulation   admit   of   as    few   occasions   for   reclamation   as   possible; 

5  Part  of  the  opinion  is  omitted. 
WooDW.  Sales — 22 


f 


338  OBLIGATIONS    OF    SELLER    AND   BUYEll  (Cll.  4 

and  I  say  its  morality  is  questionable,  because  I  am  unable  to  dis- 
cern anything  immoral  in  the  bona  fide  sale  of  an  article  represented 
to  be  exactly  that  as  which  the  vendor  had  purchased  it.  It  is  to  be 
remembered  that  I  am  speaking  of  the  sale  of  a  thing  accepted  by  the 
vendee  after  opportunity  had  to  inspect  and  test  it,  and  not  of  a  sale 
of  which  he  was  necessarily  compelled  by  the  circumstances  to  deal 
on  the  faith  of  the  vendor's  description ;  nor  yet  of  a  sale  on  the 
concoction  of  which  he  was  overreached  by  misrepresentation  or 
trick.  For  the  latter,  he  doubtless  has  his  remedy ;  but  not  by  an  ac- 
tion ex  contractu ;  and  I  therefore  lay  the  vendor's  motive  out  of 
the  case  as  one  that  can  have  no  legitimate  influence  on  the  ques- 
tion of  warranty.  But  a  positive  assertion  of  what  he  knew  not  to  be 
cither  true  or  false,  is  as  unconscionable,  and  might  be  as  injurious  as 
an  intentional  falsehood ;  and  what  is  the  vendee's  remedy  for  it 
where  the  scienter  cannot  be  proved?  The  fallacy  of  the  question, 
is  in  assuming  that  he  ought  to  have  any  remedy  at  all. 

The  relation  of  buyer  and  seller,  unlike  that  of  cestui  que  trust, 
attorney  and  client,  or  guardian  and  ward,  is  not  a  confidential  one ; 
and  if  the  buyer,  instead  of  exacting  an  explicit  warranty,  chooses 
to  rely  on  the  bare  opinion  of  one  who  knows  no  more  about  the 
matter  than  he  does  himself,  he  has  himself  to  blame  for  it.  If  he 
will  buy  on  the  seller's  responsibility,  let  him  evince  it  by  demanding 
the  proper  security ;  else  let  him  be  taken  to  have  bought  on  his 
own.  He  who  is  so  simple  as  to  contract  without  a  specification  of 
the  terms,  is  not  a  fit  subject  of  judicial  guardianship.  Reposing  no 
confidence  in  each  other,  and  dealing  at  arms'  length,  no  more  should 
be  required  of  parties  to  a  sale,  than  to  use  no  falsehood ;  and  to 
require  more  of  them,  would  put  a  stop  to  commerce  itself  in  driv- 
ing every  one  out  of  it  by  the  terror  of  endless  litigation.  Yet 
such  would  be  the  tendency  of  the  civil  law  scion  which  the  judges 
have  been  laboring  to  engraft  on  the  common-law  stock.  It  would 
be  curious  but  unprofitable  to  trace  their  advances  towards  the  object 
by  the  footsteps  in  the  cases.  In  none  of  them  have  I  discovered 
any  principle  so  plausible  as  that  assumed  by  the  judge  who  tried 
the  present  cause,  that  an  averment  of  a  material  fact  is  part  of  the 
contract,  a  position,  however,  that  will  not  bear  a  moment's  ex- 
amination. 

A  sale  is  a  contract  executed,  on  which,  of  course,  no  action  can 
be  directly  founded;  but  an  action  may  be  founded  directly  on  a 
warranty,  and  it  was  doubted  in  Stuart  v.  Wilkins,  Doug.  18,  whether 
an  action  could  be  maintained  for  a  breach  of  it  in  any  other  way ; 
consequently,  though  it  is  a  concomitant,  it  is  also  a  collateral,  self- 
existent  contract ;  and  no  more  a  part  of  the  sale,  than  a  covenant 
of  warranty  in  a  deed  is  part  of  the  conveyance.  It  is  not  easy  to 
say  what  notions  had  previously  been  entertained ;  but  for  a  short 
time  after  the  new  doctrine  had  been  broached,  the  distinction  be- 


Sec.  1)  EXPRESS    WARRANTIES  339 

tween  representation  and  warranty  was  ostensibly  observed.  But 
in  Wood  V.  Smith,  4  C.  &  P.  45,  it  was  resolved  "that  whatever  a 
person  represents  is  a  warranty :"  and  thus  the  previous  distinction, 
flimsy  and  inoperative  as  it  had  become  in  practice,  was  formally 
laid  aside.  And  that  the  court  went  even  further,  is  manifest  from  a 
glance  at  the  circumstances.  The  plaintiff,  chaffering  for  a  mare,  had 
said  interrogatively,  "she  is  sound,  of  course,"  and  the  defendant 
had  replied,  "Yes,  to  the  best  of  my  knowledge ;"  but  to  the  di- 
rect question  "Will  you  warrant  her,"  he  answered,  "I  never  war- 
rant, I  would  not  even  warrant  myself."  Yet  in  the  teeth  of  this 
peremptory  refusal,  it  was  adjudged  that  he  had  actually  entered 
into  an  express  warranty,  and  that  the  plaintiff  had  purchased  on 
the  faith  of  it.  This  conclusion  is  so  forced,  unnatural  and  opposed 
to  the  very  declared  understanding  and  intent,  that  one  is  tempted 
to  think  the  court  had  so  far  lost  sight  of  the  nature  of  a  warranty 
as  to  have  forgotten  that  it  is  a  contract ;  "that  the  assent  to  every 
contract  must  be  mutual ;  that  every  agreement  must  be  so  certain 
and  complete  that  each  party  may  have  an  action  on  it ;  and  that 
it  would  be  incomplete  if  either  party  withheld  his  assent  to  its  terms." 
I  quote  these  common-place  principles  from  Mr.  Chitty's  Treatise 
on  Contracts,  because  I  happen  to  have  the  book  at  hand.  It  is  true, 
he  says,  that  in  many  cases  the  law  implies  the  party's  assent  to  a 
promise;  but,  he  also  says,  that  such  a  contract  is  an  implied  one,\ 
and  our  business,  at  present,  is  with  the  elements  of  an  express  war-l 
ranty.  Now  it  is  not,  and  cannot  be,  a  wholesome  interpretation 
which  involves  a  party  in  engagements  he  never  dreamed  of  con- 
tracting, or  to  which  he  expressly  refused  to  assent.  If  it  is  true, 
as  it  is  said  to  be,  that  the  plain,  ordinary  and  popular  sense  of  words 
shall  prevail,  in  preference  to  their  strict  grammatical  sense,  the  de- 
cision in  Wood  v.  Smith  is  more  than  questionable;  for  that  the 
parties  themselves  put  no  such  meaning  on  their  discourse,  as  did 
the  court,  is  evident  from  the  plaintiff's  request  that  the  defendant 
would  annex  a  warranty  to  his  representation,  and  from  the  defend- 
ant's refusal  to  do  so.  After  that,  it  is  hard  to  see  what  room  there 
was  for  interpretation.  Even  the  civil-law  implication  of  warranty, 
if  it  were  inadmissible  on  no  other  ground,  would  be  repressed  by 
it,  on  the  foot  of  the  maxim,  "expressum  facit  cessare  taciturn."  It 
may  be  said  in  extenuation,  that  the  court  did  not  hold  the  defendant 
to  a  warranty  of  the  miare's  soundness,  but  only  to  a  warranty  of 
soundness  to  the  best  of  his  knowledge.  So  much  the  worse.  He 
had  refused  to  enter  into  any  warranty  whatever,  and  it  would  have 
required  no  greater  stretch  to  hold  that  he  had  entered  into  a  gen- 
eral warranty  of  soundness,  than  to  hold  that  he  had  entered  into 
a  special  warranty  of  what  he  thought  or  knew.  It  would,  too,  have 
relieved  the  court  from  the  awkwardness  of  resting  the  recovery  on 
the  collateral  warranty  of  an  immaterial   fact,   which,  assigned  as  a 


340  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

breach,  would  not  have  entitled  the  plaintiff  even  to  nominal  damages. 
And  what  makes  the  judicious  grieve,  is  that  all  this  violence  to  the 
ancient  principles  of  the  law  was  gratuitous ;  for,  as  in  Chandler  v. 
Lopus,  Cro.  Jac.  4,  as  well  as  in  the  case  before  us,  the  plaintiff' 
had  a  remedy  as  efficacious  by  an  action  for  the  deceit.     *     *     * 

As  the  cause  goes  back  to  another  jury,  it  is  proper  to  intimate 
the  principle  on  which  a  correct  decision  of  it  must  depend.  Though 
to  constitute  a  warranty  requires  no  particular  form  of  words,  the 
naked  averment  of  a  fact  is  neither  a  warranty  itself,  nor  evidence 
of  it.  In  connection  with  other  circumstances,  it  certainly  may  be 
taken  into  consideration;  but  the  jury  must  be  satisfied  from  the 
yhole  that  the  vendor  actually,  and  not  constructively,  consented  to 
e  bound  for  the  truth  of  his  representation.  Should  he  have  used 
xpressions  fairly  importing  a  willingness  to  be  thus  bound,  it  would 
furnish  a  reason  to  infer  that  he  had  intentionally  induced  the  vendee 
to  treat  on  that  basis ;  but  a  naked  affirmation  is  not  to  be  dealt  with 
as  a  warranty,  merely  because  the  vendee  had  gratuitously  relied  on 
it ;  for  not  to  have  exacted  a  direct  engagement,  had  he  desired  to 
buy  on  the  vendor's  judgment,  must  be  accounted  an  instance  of 
folly.  Testing  the  vendor's  responsibility  by  these  principles,  jus- 
tice will  be  done  without  driving  him  into  the  toils  of  an  imaginary 
contract. 

Judgment  reversed,  and  a  venire  de  novo  awarded.' 


HAWKINS  v.  PEAIBERTON  et  al. 

(Commission  of  Appeals  of  New  York,  1S72.     51  N.  Y.  198,  10  Am.  Rep.  595.) 

This  action  was  brought  to  recover  damages  for  an  alleged  breach 
of  contract  of  purchase.  The  defence  was  a  breach  of  warranty  as 
to  the  character  of  the  article  purchased,  also  fraud.  On  the  15th  of 
January,  1867,  Burdett,  Jones  &  Co.,  who  were  auctioneers  in  the  city 
of  New  York,  sold  the  plaintiff  twenty-three  barrels  of  what  was 
called  blue  vitriol.  The  auctioneer,  at  the  time  of  the  sale,  the  plaintiff 
being  present,  stated  that  the  article  was  "blue  vitriol,  sound  and  in 
good  order."  The  defendants,  being  the  highest  bidders,  became  the 
purchasers  at  eight  cents  per  pound,  relying  upon  the  representation 
of  the  auctioneer,  that  it  was  "blue  vitriol,"  and  believing  that  it  was 
such.  At  the  time  of  the  purchase,  the  defendants  examined  some  of 
it,  and  it  had  the  appearance  of  blue  vitriol,  being  blue.  They  took 
a  sample  of  it  away,  and  the  next  morning  found  that  it  had  turned 
nearly  all  white  on  the  surface  from  exposure  to  the  air,  and  con- 

6  Chief  Justice  Gibson's  view  has  been  followed  consistently  in  Pennsyl- 
vania. For  a  comparatively  recent  case  in  which  his  opinion  in  the  prin- 
cipal case  was  quoted  with  approval,  see  Holmes  v.  Tyson,  147  Pa.  305,  23 
Atl.  564,  15  L.  R.  A.  209  (1S92). 


vSeC.  1)  EXPRESS    WARRANTIES  341 

eluding  it  was  not  bine  vitriol,  they  immediately  notified  the  plaintiff 
that  they  would  not  take  it.  The  plaintiff  then  notified  them  that  he 
should  sell  it  upon  their  account  and  look  to  them  for  any  loss.  He 
accordingly  did  sell  it  at  auction  for  about  five  cents  per  pound,  and 
the  loss  was  near  $400,  which  this  action  was  brought  to  recover.; 
It  was  subsequently  discovered,  by  chemicar  analysis,  that  the  article 
contained  only  from  seventeen  to  twenty-five  per  cent,  of  blue  vitriol, 
chemically  called  sulphate  of  copper,  and  that  the  balance  was  mostly 
green  vitriol,  chemically  called  sulphate  of  iron  or  copperas.  It  was 
not  possible  at  the  time  of  the  sale  to  discover,  by  any  examination 
which  could  then  be  made,  the  true  character  of  this  article.  It  could 
be  discovered  by  exposure  for  some  hours  to  tlie  air  or  by  chemical 
analysis.  This  article  had  just  been  imported  from  Germany,  and  it 
was  shown  by  a  manufacturing  chemist,  who  formerly  resided  in  Ger- 
many, that  it  was  known  there  as  saltzburger  vitriol,  and  not  as  blue 
vitriol.  A  chemist,  sworn  on  behalf  of  the  plaintiff,  testified  that  it 
was  not  blue  vitriol,  nor  white  vitriol,  but,  chemically  speaking,  mixed 
vitriol.  While  sulphate  of  copper  was  worth  from  eight  to  nine  and 
a  half  cents  per  pound,  sulphate  of  iron  was  worth  only  one  and  a 
half  cents  per  pound. 

At  the  close  of  the  evidence  upon  the  trial,  defendants  requested 
to  go  to  the  jury  upon  the  questions  of  breach  of  warranty  and  fraud. 
The  court  refused  the  request,  and  directed  a  verdict  for  the  plain- 
tiff, and  ordered  the  exceptions  to  be  heard  in  the  first  instance  at  the 
General  Term.     A  verdict  was  rendered  accordingly. 

Earl,  C.''  This  action  was  brought  against  the  defendants  as  pur- 
chasers of  an  article  called,  at  the  time  of  the  sale,  blue  vitriol,  to  re- 
cover damages  for  refusing  to  take  and  pay  for  the  same,  and  upon 
the  trial  the  court  refused  to  submit  the  evidence  to  the  jury  and  or- 
dered a  verdict  for  the  plaintiff. 

The  defendants  failed  to  establish  their  defense  of  fraud,  and  upon 
that  question  I  think  there  was  no  evidence  to  submit  to  the  jury.  We 
have  only  therefore  to  consider  whether  there  was  evidence  tending  to 
show  that  the  plaintiff  at  the  sale  warranted  the  article  to  be  blue 
vitriol,  sound  and  in  good  order,  and  whether  there  was  a  breach 
of  this  warranty. 

It  is  unquestioned  that  there  was  a  warranty  that  the  article  was 
sound  and  in  good  order,  and  I  am  quite  clear  that  there  was  no 
breach  of  this  warranty.  It  was  good,  sound  saltzburger  or  mixed 
vitriol.  It  was  just  as  it  was  made;  not  damaged,  or  in  any  way 
out  of  order.  It  was  in  its  natural,  normal  condition,  and  it  could  not 
be  said  of  such  an  article  that  it  was  unsound. 

Did  the  plaintiff  warrant  the  article  to  be  blue  vitriol?  It  is  un- 
questioned that  at  the  time  of  the  sale,  through  his  auctioneer,  he  rep- 
resented it  to  be  blue  vitriol,  and  that  the  defendants  bought  it  as 

7  Part  of  the  opiuiou  is  omitted. 


342  OBLIGATIONS    OF    SKLLER    AND   BUYER  (Cll.  4 

such,  rel}-ing  upon  that  representation.  To  constitute  a  warranty,  it 
is  not  necessary  that  the  word  "warranty"  should  be  used.  It  is  a 
general  rule  that  whatever  a  seller  represents,  at  the  time  of  a  sale,  is 
a  warranty.    Wood  v.  Smith,  4  Car.  &  Payne,  45. 

In  Stone  v.  Denny,  4  Mete.  (]\Iass.)  151,  it  is  said  that  the  courts 
in  their  later  decisions  "manifested  a  strong  disposition  to  construe 
liberally,  in  favor  of  the  vendee,  the  language  used  by  the  vendor  in 
making  any  affirmation  as  to  his  goods,  and  have  been  disposed  to 
treat  such  affirmations  as  warranties  whenever  the  language  would 
reasonably  authorize  the  inference  that  the  vendee  so  understood  it." 

In  Oneida  Manuf.  Society  v.  Lawrence,  4  Cow.  MO,  Chief  Justice 
Savage  says :  "There  is  no  particular  phraseology  necessary  to  con- 
stitute a  warranty.  The  assertion  or  affirmation  of  a  vendor  concern- 
ing the  article  sold  must  be  positive  and  unequivocal.  It  must  be  a 
representation  which  the  vendee  relies  on.  and  which  is  understood  by 
the  parties  as  an  absolute  assertion,  and  not  the  expression  of  an 
opinion."  And  generally,  where  the  representation  is  not  in  writing. 
the  question  of  warranty  is  to  be  submitted  to  the  jury.  Duffee  v, 
Alason,  8  Cow.  25. 

It  is  not  true,  as  sometimes  stated,  that  the  representation,  in  order 
to  constitute  a  warranty,  must  have  been  intended  by  the  vendor,  as 
well  as  understood  by  the  vendee,  as  a  warranty.  If  the  contract  be 
in  writing  and  it  contains  a  clear  warranty,  the  vendor  will  not  be  per- 
mitted to  say  that  he  did  not  intend  what  his  language  clearly  and  ex- 
plicitly declares;  and  so  if  it  be  by  parol,  and  the  representation  as  to 
the  character  or  quality  of  the  article  sold  be  positive,  not  mere  mat- 
ter of  opinion  or  judgment,  and  the  vendee  understands  it  as  a  war- 
ranty, and  he  relies  upon  it  and  is  induced  by  it,  the  vendor  is  bound 
by  the  warranty,  no  matter  whether  he  intended  it  to  be  a  warrant} 
or  not.  He  is  responsible  for  the  language  he  uses,  and  cannot  es- 
cape liability  by  claiming  that  he  did  not  intend  to  convey  the  impres- 
sion which  his  language  was  calculated  to  produce  upon  the  mind  of 
the  vendee. 

Here  it  is  not  questioned  that  the  language  used  was  sufficient  to 
constitute  a  warranty  that  the  article  sold  was  sound  and  in  good  or- 
der; and  why  should  it  not  as  well  extend  to  the  character  of  the 
article?  When  a  buyer  purchases  an  article  whose  true  character 
he  cannot  discover  by  any  examination  which  it  is  practicable  for  him 
to  make  at  the  time,  why  may  he  not  rely  upon  the  positiv^e  repre- 
sentation of  the  seller  as  to  its  character  as  well  as  to  its  quality  and 
condition?  I  can  discover  no  distinction  in  principle  in  the  two 
kinds  of  representation ;  and  yet  it  is  claimed  in  behalf  of  the  plain- 
tiff that  there  is  a  distinction,  and  certain  cases  are  cited  to  uphold  it, 
which  I  will  proceed  briefly  to  consider.     *     *     * 

I  therefore  reach  the  conclusion,  both  upon  principle  and  authority, 
that  upon  the  facts  of  this  case  a  jury  might  properly  have  inferred 


Sec.  1)  EXPRESS    WARRANTIES  343 

that  there  was,  upon  the  sale,  a  warranty  that  the  article  sold  was  blue 
vitriol.  It  was  at  least  the  duty  of  the  court  to  have  submitted  the 
question  of  warranty  to  the  jury.  I  think  the  facts  were  so  clear  and 
undisputed  that  the  court  could,  without  error,  have  decided,  as  a 
question  of  law,  that  there  was  a  warranty,  but  this  it  is  unnecessary 
to  decide  upon  this  appeal. 

The  only  remaining  question  to  be  considered  is,  whether  there  was 
a  breach  of  this  warranty,  and  this  can  need  but  little  discussion.  The 
article  sold,  if  it  was  known  at  all  in  market,  was  known  by  another 
name.  It  had  only  from  seventeen  to  twenty-five  per  cent  of  blue 
vitriol  in  it.  It  was  not  an  inferior  article  of  blue  vitriol,  but  a  dif- 
ferent substance  with  a  small  admixture  of  blue  vitriol. 

The  judgment  should  therefore  be  reversed  and  a  new  trial  granted, 
costs  to  abide  event.    All  concur. 

Judgment  reversed. 


HOBART  v.  YOUNG. 

(Supreme  Com-t  of  Vermont,  1891.     63  Vt.  3G.3,  21  Atl.  G12,  12  L.  R.  A.  693.) 

Action  to  recover  damages  for  deceit  and  full  warranty  in  the  sale 
of  a  horse. 

The  evidence  of  the  plaintiff  tended  to  show  that  in  early  June, 
1888,  he  purchased  a  pair  of  horses,  of  which  the  horse  in  question 
was  one;  that  he  first  saw  these  horses  in  May;  that  about  the  1st 
of  June  he  rode  after  them  with  the  defendant ;  and  that  the  defend- 
ant then  warranted  them  to  be  sound.  The  plaintiff  did  not  purchase 
them  that  day,  but  agreed  with  the  defendant  upon  a  price  at  which 
he  could  have  them,  and  afterwards,  on  the  5th  of  June,  sent  his 
man  Somers  with  a  check  and  a  bill  of  sale  for  them.  The  defendant 
received  the  check,  and  signed  the  bill  of  sale.  The  horses  were  de- 
livered by  the  defendant's  brother.  Upon  getting  the  horses  home  the 
plaintiff  ascertained  that  one  of  them  had  a  ringbone,  which  was  the 
unsoundness  complained  of.     *     *     * 

The  bill  of  sale  which  the  plaintiff  signed  was  as  follows :  "Al- 
burgh,  June  5th,  1888.  J.  W.  Hobart,  bo't  of  Sumner  Young,  Esq., 
one  pair  of  black  (Pilot)  geldings,  sound  and  kind,  $487.50;  to  be  de- 
livered on  the  cars  at  the  depot  with  good  halters,  duties  paid,  and 
certificates  of  the  same  attached  hereto.     Rec'd.  payment.     S.  Young." 

The  court  also  instructed  the  jury  that  the  plaintiff  could  recover  if 
they  found  that  the  defendant  warranted  the  horses  upon  the  occasion 
when  the  plaintiff  rode  after  them  and  agreed  upon  the  price,  about 
June  1st.  ^ 

RowEivL,  J.  *  *  *  It  was  not  error  to  submit  to  the  jury  to 
find  whether  there  was  a  verbal  warranty  on  the  2d  of  June,  the  last 

8  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


344  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

time  plaintiff  saw  the  horses  before  the  purchase.  Although  he  did 
not  buy  them  that  day,  the  price  was  then  agreed  upon  at  which 
he  could  have  them.  The  testimony  on  the  part  of  the  plaintiff,  ad- 
mitted without  objection,  presented  two  aspects  as  to  warranty,  name- 
ly, that  of  a  verbal  warranty  on  June  2d,  and  that  of  a  written  war- 
ranty on  June  5th.  The  defendant  denied  both,  and  said  that  the  bill 
of  sale  did  not  contain  a  warranty,  and  that  if  it  did  he  was  not  bound 
by  it  because  of  the  circumstances  in  which  he  signed  the  bill.  No 
objection  was  made  to  the  admission  of  the  parol  evidence  as  varying 
the  written  contract.  In  this  posture  of  the  case  it  was  the  duty  of 
the  court  to  submit  both  aspects  of  that  question;  for  it  is  not  neces- 
sary that  representations,  in  order  to  constitute  a  warranty,  should  be 
simultaneous  with  the  conclusion  of  the  bargain,  but  only  that  they 
should  be  made  during  the  course  of  the  negotiations  that  lead  to  the 
bargain,  and  should  then  enter  into  the  bargain  as  a  part  of  it.  Wil- 
mot'v.  Hurd,  11  Wend.  (N.  Y.)  585;  2  Benj.  Sales,  (Corbin's  Ed.)  § 
929. 

An  important  question  is  whether  the  words  "sound  and  kind," 
contained  in  the  bill  of  sale,  constitute  an  express  warranty  as  matter 
of  law.  The  law  of  warranty  has  undergone  much  change  since  Chan- 
delor  v.  Lopus,  Cro.  Jac.  4,  decided  in  the  exchequer  chamber  in  1803. 
It  was  there  held  that  an  affirmation  that  the  thing  sold  was  a  bezoar- 
stone  was  no  warranty ;  for,  it  was  said,  every  one,  in  selling  his 
wares,  will  afifirm  that  they  are  good,  or  that  the  horse  he  sells  is 
sound ;  yet,  if  he  does  not  warrant  them  to  be  so,  it  is  no  cause  of  ac- 
tion. But  latterly  courts  have  manifested  a  strong  disposition  to 
construe  liberally  in  favor  of  the  purchaser  what  the  seller  affirms 
about  the  kind  and  quality  of  his  goods,  and  have  been  disposed  to 
treat  such  affirmations  as  warranties  when  the  language  will  bear 
that  construction,  and  it  is  fairly  inferable  that  the  purchaser  so  un- 
derstood it.  Stone  v.  Denny,  4  Mete.  (Mass.)  155;  Hawkins  v.  Pem- 
berton,  51  N.  Y.  198,  10  Am.  Rep.  595.  And  now  any  affirmation  as 
to  the  kind  or  quality  of  the  thing  sold,  not  uttered  as  matter  of  com- 
munication, opinion,  nor  belief,  made  by  the  seller  pending  the  treaty 
of  sale,  for  the  purpose  of  assuring  the  purchaser  of  the  truth  of  the 
affirmation  and  of  inducing  him  to  make  the  purchase,  if  so  received 
and  relied  upon  by  the  purchaser,  is  deemed  to  be  an  express  warran- 
ty. And  in  cases  of  oral  contracts  it  is  the  province  of  the  jury  to  de- 
cide, in  view  of  all  the  circumstances  attending  the  transaction,  wheth- 
er such  a  warranty  exists  or  not.  Foster  v.  Caldwell's  Estate,  18  V^t. 
176;  Bond  v.  Clark,  35  Vt.  577;  Shippen  v.  Bowen,  122  U.  S.  S7S,  7 
Sup.  Ct.  1283,  30  L.  Ed.  1172. 

But  when  the  contract  is  in  writing,  it  is  for  the  court  to  construe 
it,  and  to  decide  whether  it  contains  a  warranty  or  not,  (Wason  v. 
Rowe,  16  Vt.  525 ;)  and  by  the  great  weight  of  recent  authority  posi- 
tive statements  in  instruments  evidencing  contracts  of   sale,  descrip- 


Sec.  1)  EXPRESS    WARRANTIES  345 

tive  of  the  kind,  or  assertive  of  the  quality  and  condition  of  the  thing 
sold,  are  treated  as  a  part  of  the  contract  and  regarded  as  warranties 
if  the  language  is  reasonably  susceptible  of  that  construction,  and  it 
is  fairly  inferable  that  the  purchaser  understood  and  relied  upon  it 
as  such.  Thus,  in  Hastings  v.  Lovering,  2  Pick.  (Mass.)  214,  13  Am. 
Dec.  420,  the  sale  note  described  the  article  as  "prime  quality  winter 
sperm  oil."  The  plaintiff  declared  in  assumpsit  on  a  warranty,  and 
had  judgment.  In  Henshaw  v.  Robins,  9  Mete.  (Mass.)  83,  43  Am. 
Dec.  367,  the  bill  of  particulars  affirmed  the  article  to  be  indigo.  The 
court  said  that  that  imported  an  express  warranty  if  it  was  so  intend- 
ed, and  that  it  must  be  taken  to  have  been  so  intended,  as  there  was 
no  evidence  to  the  contrary.  In  Brown  v,  Bigelow,  10  Allen  (Mass.) 
242,  a  case  exactly  in  point,  these  very  words,  "sound  and  kind,"  were 
held  to  constitute  a  general  warranty  of  soundness.  In  Gould  v. 
Stein,  149  Mass.  570,  22  N.  E.  47,  5  L.  R.  A.  213,  14  Am.  St.  Rep. 
455,  a  bought  and  sold  note  described  the  article  as  "Ceara  scrap 
rubber  as  per  sample,  of  second  quality."  The  court  said  that  it  did 
not  admit  of  doubt  that  the  note  was  intended  to  express  the  terms 
of  the  sale,  and  that  the  contract  of  the  parties  was  to  be  found  in 
what  was  thus  written,  read  in  the  light  of  the  attendant  circumstanc- 
es. Held  a  warranty  that  the  rubber  was  of  second  quality,  and  that 
the  fact  that  the  plaintiff  made  such  examination  of  it  as  he  pleased 
did  not  necessarily  do  away  with  the  warranty. 

Osgood  V.  Lewis,  2  Har.  &  G.  (Md.)  495,  18  Am.  Dec.  317,  is  a 
leading  case  on  this  subject.  There  the  bill  of  particulars  contained 
a  statement  that  the  article  was  "winter-pressed  sperm  oil,"  and  the 
question  was  whether  those  words  were  per  se  a  warranty ;  and  it 
was  held  that  they  were,  for  it  was  said  they  could  not  be  regarded 
as  mere  matter  of  opinion  or  belief,  but  as  the  assertion  of  a  material 
fact  that  the  defendant  assumed  to  know  and  to  warrant  the  existence 
of.  In  Kearly  v.  Duncan,  1  Head  (Tenn.)  397,  7Z  Am.  Dec.  179,  the 
words,  "said  negroes,  sound  in  body  and  mind."  contained  in  a  re- 
ceipt for  the  price  paid  for  them,  were  held  clearly  to  constitute  a 
warranty  of  soundness.  The  words,  "being  of  sound  mind  and  limb, 
and  free  from  all  disease,"  in  a  bill  of  sale  of  slaves,  were  held  a  war- 
ranty in  Cramer  v.  Bradshaw,  10  Johns.  (N.  Y.)  484.  This  case  is 
criticised  by  Bennett,  J.,  in  Foster  v.  Caldwell's  Estate,  18  AT.  181, 
who  would  treat  the  words  as  a  mere  representation,  descriptive  of 
the  property  sold.  But  that  case  seems  to  have  stood  the  test  in  New 
York,  while  Seixas  v.  Woods,  2  Caines,  48,  2  Am.  Dec.  215,  and 
Swett  V.  Colgate,  20  Johns.  203,  11  Am.  Dec.  266,  to  which  he  refers, 
and  which  held  that  no  warranty  arises  from  a  description  of  the 
kind  of  property  sold,  have  been  expressly  overruled  by  Hawkins  v. 
Pemberton,  51  N.  Y.  198,  10  Am.  Rep.  595,  as  not  properly  applying 
the  doctrine  that  they  correctly  announce,  wherein  a  contrary  applica- 
tion is  made,  and  wherein   it   is  held  that  there  is  no  distinction   in 


346  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

principle  between  a  representation  as  to  quality  and  condition  and  a 
representation  as  to  kind  and  character.  And  in  1  Smith,  Lead.  Cas. 
(7th  Amer.  Ed.)  341,  it  is  said  that  such  a  distinction  is  too  refined  to 
be  practicable. 

In  Yates  v.  Pym,  6  Taunt.  446,  a  description  of  bacon  in  a  sale 
note  as  "prime  singed"  was  held  to  be  a  warranty  that  it  was  prime 
singed.  So  in  Bridge  v.  Wain,  1  Starkie,  504,  the  goods  sold  were 
described  in  the  invoice  as  "scarlet  cuttings."  Held  a  warranty  that 
they  answered  the  known  mercantile  description  of  scarlet  cuttings. 
The  advertisement  of  the  sale  of  a  ship  described  her  as  a  "copper- 
fastened  vessel,"  whereas  she  was  only  partially  copper-fastened,  and 
not  what  was  called  in  the  trade  a  "copper-fastened  vessel."  Held  a 
warranty  that  she  was  copper-fastened.  Shepherd  v.  Kain,  5  Barn.  & 
Aid.  240.  A  sold  note  described  turnip  seed  as  "Skirving's  Swedes." 
Coleridge,  J.,  said  that  there  was  no  doubt  that  the  statement  was 
made  by  the  defendant  a  part  of  the  contract,  and  it  was  held  to  be 
a  warranty  that  the  seed  was  Skirving's.  Allen  v.  Lake,  18  Q.  B. 
560.  In  Wetherill  v.  Neilson,  20  Pa.  448,  54  Am.  Dec.  741,  the  bill 
of  sale  described  the  soda-ash  as  being  of  a  certain  strength,  whereas 
it  was  of  a  less  strength,  and  unmerchantable.  Held  no  warranty.  It 
is  said  in  1  Smith,  Lead.  Cas.  (7th  Amer.  Ed.)  343,  that  this  case 
stands  almost,  if  not  quite,  alone,  and  cannot  be  reconciled  with  the 
general  course  of  decisions  in  this  country  and  in  England. 

In  Barrett  v.  Hall,  1  Aikens  (Vt.)  269,  the  note  was  payable  in 
"good  cooking-stoves."  The  court  said  that  no  definite  quality  could 
be  intended  from  the  term  "good,"  and  that  it  imported  nothing  but 
opinion,  and  was  no  warranty,  and  referred  to  Chandelor  v.  Lopus, 
Cro. ' Jac.  4,  for  authority,  which  is  no  longer  authority.  But  we  do 
not  say  that  the  court  was  wrong  in  that  case,  for  "good"  is  a  very 
common  term  of  praise  in  trade,  and  as  used  in  the  note,  ascribed 
no  particular  quality  to  the  stoves,  and  might  well  be  regarded,  in 
that  case,  as  mere  matter  of  opinion  or  commendation,  and  as  so  un- 
derstood by  the  parties.  In  Wason  v.  Rowe,  16  Vt.  525,  the  bill  of 
sale  said  the  horse  was  "considered  sound."  Held  no  warranty;  and 
with  good  reason,  for'  "considered"  was  no  assertion  of  a  fact,  but  a 
mere  expression  of  opinion.  The  more  recent  cases  in  this  state  rec- 
ognize the  general  rule  that  positive  statements  of  fact  by  the  seller 
in  respect  of  the  kind  or  the  quality  of  the  thing  sold  that  constitute 
a  part  of  the  contract  or  form  its  basis,  and  that  are  fairly  susceptible 
of  such  a  construction,  are  to  be  regarded  as  warranties.  Thus  in 
Beals  V.  Olmstead,  24  Vt.  114,  58  Am.  Dec.  150.  one  of  the  reasons 
[given  why  the  defendant's  statements  ought  to  be  regarded  as  war- 
ranties is  that  they  were  made  positively,  and  concerning  matters  as 
[to  which  he- was  supposed  and  professed  to  have  knowledge.  There- 
Ifore,  it  is  said,  he  ought  to  expect  to  be  bound  by  them.  See,  also, 
Drew  V.  Edmunds,  60  Vt.  401,  15  Atl.  100,  6  Am.  St.  Rep.  122; 
Enger  v.  Dawley,  62  Vt.  164,  19  Atl.  478. 


Sec.  1)  EXPRESS    WARRANTIES  347 

It  is  sufficiently  certain,  as  matter  of  construction,  that  the  words, 
"sound  and  kind,"  found  in  the  bill  of  sale  before  us,  were  intended 
by  the  parties  to  be  a  part  of  the  contract  of  sale,  and  as  such  it  would 
be  unreasonable  to  construe  them  as  an  expression  of  mere  opinion 
when  they  positively  ascribe  to  the  horses  a  condition  and  a  quality 
that  the  defendant  assumed  to  know  they  possessed,  and  that  he  had 
peculiar  means  of  knowing-  whether  they  possessed  or  not,  while  the 
plaintiff  had  no  such  means.  We  think  the  words,  reading  the  instru- 
ment in  the  light  of  the  attendant  circumstances,  clearly  constitute  an 
express  warranty  of  soundness,  and  that  the  chief  judge  was  right 
in  so  holding. 

Judgment  affirmed. 


\ 


NORRIS  et  al.  v.  PARKER. 
(Court  of  Civil  Appeals  of  Texas,  1896.  15  Tex.  Civ.  App.  117,  38  S.  W.  2.59.1 

Finl£;y,  J.  Appellants'  general  statement  of  the  nature  and  result 
of  the  suit  is  accepted  by  appellee  as  being  correct,  and  is  as  follows : 
"On  March  17,  1894,  W.  H.  Parker  of  Clarksville,  Tex.,  sold  and  de- 
livered to  W.  T.  Norris  and  G.  B.  Dean,  at  Detroit,  Tex.,  a  fine  Span- 
ish jack  for  breeding  purposes,  and  received  in  payment  therefor  the 
sum  of  $400  cash,  and  their  promissory  note  for  the  sum  of  $400,  due 
and  payable  to  his  order  on  November  15,  1894.  At  the  time  of  sale 
all  the  hair  had  been  smoothly  clipped  off  said  jack.  On  that  evening, 
and  the  next  morning  thereafter,  the  animal  showed  symptoms  of  be- 
ing unwell,  and  gradually  grew  worse,  until  it  died,  on  the  tenth  day 
following.  In  consequence  thereof  the  defendants  refused  to  pay  the 
note  therefor  when  it  matured. 

On  January  7,  1895,  the  payee,  W.  H.  Parker,  instituted  this  suit 
in  the  county  court  of  Red  River  county,  Tex.,  to  enforce  the  collec- 
tion of  the  same.  On  January  30,  1895,  the  defendants  filed  their  first 
amended  original  answer,  and,  under  oath,  specially  set  up  and  alleged, 
by  way  of  cross  bill  and  plea  in  reconvention,  that  they  purchased  the 
jack  from  plaintiff  under  a  warranty  that  it  was  perfectly  sound  in 
every  particular,  a  vigorous  and  sure  foal  getter,  and  that  the  shear- 
ing would  not  injure  its  health,  but  be  the  very  life  of  same;  that  they 
relied  on  the  warranties,  and  that  they  were  a  part  of  the  inducements 
for  making  the  purchase  and  paying  the  price  therefor;  that  it  was 
unsound  at  the  time  of  the  sale,  and  wholly  unable  to  perform  the 
services  of  a  breeder,  without  any  fault  on  their  part.  They  further 
alleged  that,  if  it  were  not  diseased  at  the  time  of  sale,  as  before  stated, 
its  death  was  occasioned  from  the  effects  of  a  disease  brought  on  by 
reason  of  said  shearing,  and  that  the  consideration  in  said  note  by  rea- 
son thereof  had  wholly  failed,  and  prayed  for  cancellation  of  same, 
and  judgment  over  against  plaintiff  for  the  sum  of  $415. 

The  foregoing  statement,  while  not  setting  forth  all  the  allegations 


34S  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

in  dtfcrndants'  answer,  we  think,  is  sufficient  to  show  the  grounds  of 
their  defense.  On  January  30,  1895,  plaintiff  filed  his  first  supple- 
mental petition,  which  consisted  of  a  general  demurrer  and  a  general 
denial."  On  January  23,  1896,  the  case  was  tried  before  a  jury,  and 
the  same  resulted  in  a  verdict  and  judgment  for  plaintiff  in  the  sum 
of  $513.35,  from  which  judgment  this  appeal  is  prosecuted. 

The  issues  upon  the  trial  were  "whether  the  plaintiff,  at  the  time  of 
the  sale,  warranted  the  jack  to  be  sound  and  a  sure  foal  getter,  and 
that  the  clipping  would  not  hurt  it,"  and  whether  the  warranty  had 
failed.  There  was  a  conflict  in  the  evidence  between  the  testimony  of 
the  plaintiff  and  of  the  defendants.  The  court  charged  the  jury  as 
follows :  "Where  a  person  sells  an  animal,  and  warrants  it  to  be  sound 
at  the  time  of  such  sale,  he  is  bound  by  his  warranty  to  the  vendee.  I 
|therefore  charge  you  that  if  you  believe,  from  the  evidence,  that  plain- 
ftiff  sold  the  jack  to  the  defendants  at  the  time  alleged,  and  warranted 
it  to  be  sound ;  and  if  you  should  believe,  from  the  evidence,  that  at 
the  time  of  such  sale  said  jack  was  unsound,  not  a  sure  foal  getter, 
and  not  as  warranted  to  be  by  the  plaintiff  (if  plaintiff'  did  give  war- 
ranty),— you  will  find  for  defendants,  on  their  cross  bill,  for  the  sum 
of  $415,  and  interest  to  date  from  March  17,  1894,  and  also  find  that 
the  note  for  $400  sued  on  in  this  suit  is  without  consideration.  But  if 
you  should  believe,  from  the  evidence,  that  said  jack  was  sound  at  the 
time  of  sale,  and  a  good  breeder,  as  represented  by  plaintiff  to  de- 
fendants, you  will  find  for  plaintiff  for  amount  of  note  sued  on,  inter- 
est, and  attorney's  fees  as  prayed  for,  and  against  the  defendants  on 
their  cross  bills.  I  further  charge  you  that  defendants  would  be  bound 
I  to  observe  all  patent  conditions  and  defects  in  the  jack  at  the  time  they 
'  bought  him,  and  if  there  were  any  latent  defects  in  the  animal  known 
to  plaintiff,  and  of  such  a  character  as  to  render  said  jack  worthless, 
and  he  failed  to  disclose  them,  it  would  be  a  breach  of  his  warranty 
(if  he  made  a  warranty),  and  you  will  find  for  defendants  as  above 
stated." 

Appellants'  counsel  requested  of  the  court  the  following  charge 
which  was  refused :  "If  you  believe,  from  the  evidence,  that  at  the 
time  said  animal  was  sold  to  defendants,  its  hair  was  clipped  oft';  and 
if  you  further  believe,  from  the  evidence,  that  plaintiff'  guarantied 
that  the  shearing  would  be  the  very  making  of  such  animal,  and  that 
such  warranty  wa,s  part  of  the  inducement  for  defendants  to  com- 
plete the  contract  of  sale  and  execute  the  note  sued  on ;  and  if  you 
further  believe,  from  the  evidence,  that  said  shearing  was  the  proxi- 
mate cause  of  the  death  of  said  animal,  and  that  defendants  exercised 
ordinary  care  to  prevent  the  death  of  said  animal  as  heretofore  ex- 
plained,— you  will  return  a  verdict  for  defendants." 

Appellants  complain  at  the  charge  of  the  court,  and  the  refusal  of 
their  special  charge  asked.  We  are  of  the  opinion  that  the  charge  of 
the  court  is  objectionable,  and  that  the  substance  of  the  special  charge 
should  have  been  given.    Appellants  alleged  an  express  warranty  that 


Sec.  1)  EXPRESS    WARRANTIES  349 

the  animal  was  sound,  that  it  was  a  sure  foal  getter,  and  that  it  would!  I 
not  suffer  injury  from  having  been  sheared.  The  court  instructed 
the  jury,  in  effect,  that,  notwithstanding  such  express  warranty,  the 
purchasers  must  take  notice  of  the  patent  conditions  and  defects,  and 
that  the  vendor  would  not  be  responsible  for  latent  or  hidden  defects 
unknown  to  him.  The  jury  may  have  understood  by  this  charge  that 
the  purchasers  must  take  notice  that  the  animal  had  been  sheared, 
and,  if  there  were  any  evil  effects  of  such  shearing,  unknown  to  the 
vendor,  that  he  would  not  be  liable  on  his  express  warranty,  even 
though  they  should  believe  that  the  shearing  of  the  animal  caused  its 
death.  This  is  the  very  reverse  of  the  law  of  the  case.  If  the  vendon 
warranted  to  the  purchasers  that  the  shearing  would  not  damage  the! 
animal,  and  the  shearing  did  produce  its  death,  then  the  warranty  wasi 
broken,  and  the  purchasers  could  not  be  held  liable  for  the  purchase 
price  of  the  animal. 

It  is  true  that,  ordinarily,  a  general  warranty  in  the  sale  of  chattels  i 
does  not  cover  defects  which  are  plain  and  obvious  to  the  purchaser,  I 
or  which  are  at  the  time  known  to  him ;  but  where  there  is  an  express  I 
and  special  warranty,  the  warrantor  is  bound  by  the  terms  of  his  con- 
tract of  warranty.  "It  is  sometimes  stated,  without  qualification,  that 
an  express  warranty  does  not  cover  patent  defects,  unless  expressly 
included  and  referred  to.  But,  while  this  may  be  true,  so  far  as  to 
raise  the  presumption  that  the  purchaser  was  aware  of  the  patent  de- 
fects, and  therefor  did  not  rely  upon  the  warranty  for  protection 
against  defects  of  whose  existence  he  was  already  aware,  yet  that  pre- 
sumption cannot  be  held  to  be  conclusive,  and,  wherever  it  can  be 
shown  that  the  buyer  relied  absolutely  upon  his  warranty  and  made 
no  attempt  to  exercise  his  own  judgment  in  the  determination  of  the 
value  and  quality  of  the  goods,  the  warranty  will  cover  obvious,  as 
well  as  hidden,  defects.  But,  in  order  that,  in  any  case,  the  obvious- 
ness of  the  defect  may  exclude  it  from  the  operation  of  the  express 
warranty,  it  must  be  so  patent  that  an  ordinary  purchaser  may  dis- 
cover it,  and  that  no  special  skill  or  knowledge  is  required  for  its  de- 
tection. And  not  only  must  the  defect  itself  be  discoverable,  but  its 
full  and  complete  scope  and  effect.  If  the  patent  defect  does  not  at 
the  time  of  sale  appear  to  be  very  serious,  and  it  develops  into  a  more 
serious  trouble,  the  express  warranty  of  soundness  will  be  broken 
thereby.  And  the  fact  that  the  consequences  of  the  defect  cannot  be 
reliably  determined  in  advance  is  in  itself  evidence  of  an  intention  of 
the  buyer  to  rely  upon  the  warranty  for  protection  against  the  possi- 
ble consequences  of  the  defect.  If  the  seller  throws  the  purchaser 
off  his  guard  by  his  representations  or  actions,  or  in  any  other  way 
conceals  the  defects,  they  will,  of  course,  so  far  as  that  purchaser  is 
concerned,  cease  to  be  patent  defects,  and  will  be  included  in  the  war- 
ranty. It  hardly  needs  to  be  stated  that  an  express  warranty  may  be 
so  constructed  as  to  include  every  obvious  as  well  as  latent  defect, 
and  that  the  present  inquiry  is  simply  into  the  presumption  of  law 


350  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

'  when  the  language  of  the  warranty  is  general,  and  contains  no  specific 
or  necessary  reference  to  the  obvious  defects."     Tied.  Sales,  §  195. 
In  Benjamin  on  Sales  (page  627)  it  is  said:   "There  seems  to  be  no 

/  good  reason  why  a  warranty  may  not  cover  obvious  defects  as  well  as 
others,  if  the  vendor  is  willing  to  give  it,  and  the  buyer  is  willing  to 
buy  defective  property  on  the  assurance  of  the  warranty.  If  he  relies 
on  his  own  judgment  alone,  he  does  not  rely  on  his  warranty."  "A 
special  warranty  on  the  sale  of  a  horse  may  be  made  to  cover  blem- 
ishes or  defects  which  are  open  and  visible,  if  the  intention  to  do  so  is 
clearly  manifested,"  is  the  language  of  the  supreme  court  of  Alinnesota 
in  the  case  of  Fitzgerald  v.  Evans,  49  i\Iinn.  541,  52  N.  W.  143.  In 
Watson  V.  Roode,  30  Neb.  264,  46  N.  W.  491,  it  is  said:  "A  vendor  is 
liable  for  patent  defects  in  personal  property  sold,  when  it  is  so  stip- 
ulated in  the  warranty."  See,  also,  Henderson  v.  Railroad  Co.,  17 
Tex.  580,  67  Am.  Dec.  675 ;  Hobart  v.  Young,  12  L.  R.  A.  694,  note ; 
s.  c.  63  Vt.  363,  21  Atl.  612;  Powell  v.  Chittick,  89  Iowa,  513,  56  N. 
W.  652;  Williams  v.  Ingram.  21  Tex.  300. 

The  same  portion  of  the  charge  of  the  court  above  quoted  is  made 
the  basis  of  another  assignment  of  error,  and  complaint  is  leveled  at 
that  particular  portion  of  the  charge  which  says :  "If  there  were  any 
latent  defects  in  the  animal  known  to  plaintiff,  and  of  such  a  nature  as 
to  render  said  jack  worthless,  and  if  he  failed  to  disclose  them,  it 
would  be  a  breach  of  his  warranty  (if  he  made  a  warranty)."  The 
proposition  urged  by  appellants  is  that,  if  plaintiff  made  an  express 
warranty  that  the  animal  was  sound  and  a  sure  foal  getter,  he  was 
bound  by  the  terms  of  the  warranty,  and  would  not  be  relieved  by  the 
fact  that  he  honestly  believed  the  animal  to  be  sound  and  a  sure  foal 
getter. 

On  this  phase  of  the  case  appellants  asked  the  following  special 
charge :  "You  are  instructed  that  it  is  not  necessary  for  the  vendor  of 
an  animal  to  know  that  the  same  is  unsound,  or  not  a  sure  foal  getter, 
in  order  to  make  him  liable  on  a  warranty  of  soundness,  or  that  the 
same  was  a  sure  foal  getter.  If  you  believe,  from  the  evidence,  that 
the  plaintiff  warranted  the  said  animal,  for  which  the  note  sued  on 
was  executed,  to  be  sound  and  a  sure  foal  getter  and  you  further  be- 
lieve, from  the  evidence,  that  the  said  plaintiff  honestly  believed  said 
animal  was  sound,  and  a  sure  foal  getter,  at  the  time  of  said  warranty, 
but  if  you  further  believe,  from  the  evidence,  that  said  animal  was 
unsound,  and  not  a  sure  foal  getter,  you  will  find  for  defendants,  al- 
though you  may  believe  that  plaintiff  honestly  believed  said  warranties 
to  be  true  at  the  time  they  were  made."  The  special  charge  presented 
the  law,  and  should  have  been  given. 

It  is  unnecessary  to  discuss  the  other  assignments  of  error  and  the 
propositions  urged  thereunder.  The  principles  of  law  applicable  to 
the  two  phases  of  the  case,  that  of  express  general  warranty,  and  ex- 
press special  or   specific  warranty,  have  already  been  stated.     Upon 

another  trial  the  court  should  present  the  two  phases  of  the  case  as 


Sec.  1)  EXPRESS    WARRANTIES  351 

made  by  the  respective  parties,  and  announce  the  principles  of   law 
appHcable  to  each,  as  laid  down  in  this  opinion. 

On  account  of  the  errors  pointed  out,  the  judgment  is  reversed,  and 
the  cause  remanded 


POWERS  V.  BRIGGS. 

(Supreme  Court  of  Michigan,  1905.     139  Mich.  664,  103  N.  W.  194.) 

Montgomery,  J.°  This  action  was  brought  to  recover  the  price 
of  a  hay  loader  sold  and  delivered  to  the  defendant.  The  defense 
was  that  the  loader  was  bought  under  an  express  warranty  that  it 
would  do  good  work  and  would  load  hay  from  windrows,  and  that, 
if  it  failed  to  do  so,  defendant  might  return  it;  that  it  did  not  answer 
the  terms  of  the  warranty;  and  that  defendant  returned  it.  There 
was  a  sharp  contest  on  the  trial.  The  circuit  judge  submitted  to  the 
jury  the  three  questions:  (1)  Whether  there  was  such  a  warranty 
as  claimed ;  (2)  whether  defendant  gave  the  machine  a  fair  test  within 
a  reasonable  time,  and  found  that  the  machine  would  not  do  good 
work;  and  (3)  whether  within  a  reasonable  time  thereafter  he  re- 
turned the  machine  to  plaintiff. 

If  there  was  evidence  which  justified  the  submission  of  each  of 
these  questions  to  the  jury,  we  think  the  concise,  clear  charge  of 
the  circuit  judge  covered  all  the  points  in  the  case,  and  that  no 
elaboration  was  necessary.  It  is  insisted,  however,  that  the  evi- 
dence shows  that  the  sale,  when  made,  was  not  accompanied  by  a  war- 
ranty. Plaintiff's  contention  in  this  regard  is  best  stated  in  his  re- 
quest to  charge :  "The  time  when  the  warranty  was  made,  if  any  were 
made,  becomes  important  in  this  suit.  If  you  find  that  some  time 
prior  to  the  delivery  of  the  machine  the  plaintiff,  either  by  phone  or 
otherwise,  tried  to  sell  a  hay  loader  to  the  defendant,  and  in  the 
negotiations  made  warranties  and  representations  of  what  such  ma- 
chine would  do,  and  said  that  if  said  machine  did  not  do  good  work  the 
defendant  would  not  have  to  keep  it,  and  that  it  might  be  returned ; 
and  find  that  the  offer  and  proposal  of  the  plaintiff  was  not  at  the  time 
accepted  by  the  defendant,  but  that  the  defendant  said  he  would  con- 
sider the  matter,  and  let  the  plaintiff  know  whether  he  would  take  the 
machine  or  not ;  and  find,  further,  that  the  plaintiff  afterwards  called 
the  defendant  by  phone  and  asked  him  if  he  was  going  to  take  the 
machine,  and  whether  the  plaintiff  should  order  a  machine  for  him, 
and  that  the  defendant  then  informed  the  plaintiff,  in  substance,  that 
he  (the  defendant)  had  concluded  not  to  buy  a  machine,  and  that  the 
plaintiff  need  not  order  a  machine  for  defendant — that  would  end 
the  negotiations  at  that  point,  and  all  representations  and  warranties, 
if  any,  made  by  the  plaintiff  up  to  that  time,  would  not  bind  the  plain- 

9  Part  of  the  opinion  is  omitted. 


352  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

tiff  in  any  after  negotiations  or  proposals  of  sale,  unless  he  expressly 
renewed  them.  If  the  status  of  affairs  then  was  that  the  plaintiff  had 
made  a  proposal  of  sale  which  the  defendant  rejected,  a  new  war- 
ranty would  have  to  be  made  by  the  plaintiff  in  order  to  bind  him." 

We  do  not  think  this  request  correctly  states  the  law.  The  evi- 
dence shows  that,  after  the  conversation  referred  to  in  the  request, 
the  subject  was  again  taken  up,  and  the  loader  ordered.  In  the  view 
most  favorable  to  plaintiff,  it  was  a  question  for  the  jury  as  to 
whether  the  subsequent  order  had  reference  to,  and  was  understood 
to  have  reference  to,  the  preceding  conversation,  and  whether  both 
parties  understood  that  the  loader  was  ordered  under  the  warranty 
which  was  a  part  of  the  oft'er  of  the  machine  in  the  first  instance. 
The  case  of  Childs  v.  O'Donnell,  84  Mich.  533,  47  N.  W.  1108,  is 
easily  distinguished.  It  was  there  held  that  a  warranty  on  a  sale  of 
one  bill  of  goods  did  not  attach  to  a  sale  of  another  bill  at  a  later 
time.  In  the  present  case  the  negotiations  all  related  to  the  identical 
machine  delivered  to  the  defendant,  and  the  question  is  whether  all 
that  was  said  during  the  negotiations  was  understood  to  have  refer- 
ence to  these  machines,  and  whether,  in  the  understanding  of  the 
parties,  the  proposed  warranty  attached  when  the  sale  was  finally 
consummated.     *     *     * 

Judgment  affirmed. 


SECTION  2.— IMPLIED  WARRANTY  OF  TITLE 


GOULD  V.  BOURGEOIS. 

(Supreme  Court  of  New  Jersey,  18S9.     51  N.  J.  Law,  361,  18  Atl.  64.) 

DUPUE,  J.^"  *  *  *  'pj^g  theory  on  which  a  warranty  of  title 
is  implied  upon  the  sale  of  personal  property  is  that  the  act  of  selling- 
is  an  affirmation  of  title.  The  earlier  English  cases,  of  which  Medina 
v.  Stoughton,  1  Salk.  210,  1  Ld.  Raym.  593,  is  a  type,  adopted  a  dis- 
tinction between  a  sale  by  a  vendor  who  was  in  possession  and  a  sale 
where  the  chattel  was  in  the  possession  of  a  third  person ;  annexing  a 
warranty  of  title  to  the  former,  and  excluding  it  in  the  latter.  In  the 
celebrated  case  of  Pasley  v.  Freeman,  3  Term  R.  51,  Duller,  J.,  re- 
pudiated this  distinction.  Speaking  of  IMedina  v.  Stoughton,  this 
learned  judge  said  that  the  distinction  did  not  appear  in  the  report  of 
the  case  by  Lord  Raymond,  and  he  adds:  "If  an  affirmation  at  the 
time  of  the  sale  be  a  warranty,  I  cannot  feel  a  distinction  between  the 
vendor's  being  in  or  out  of  possession.    The  thing  is  bought  of  him, 

10  Part  of  the  opiuion  is  omitted. 


Sec.  2)  IMPLIED   WARRANTY   OF   TITLE  353 

and  in  consequence  of  his  assertion;  and,  if  there  be  any  dififerenceV 
it  seems  to  me  that  the  case  is  strongest  against  the  vendor  when  hey^ 
is  out  of  possession,  because  then  the  vendee  has  nothing  but  the  war- 
ranty to  rely  on."  Nevertheless  the  English  courts  continued  to 
recognize  the  distinction,  with  its  incidents,  as  adopted  in  Medina  v. 
Stoughton,  to  some  extent,  at  least  so  far  as  to  annex  the  incident  of 
an  implied  warranty  of  title  on  a  sale  by  a  vendor  in  possession.  Lat- 
er decisions  have  placed  the  whole  subject  of  implied  warranty  of  title 
on  a  more  reasonable  basis.  Mr.  Benjamin,  in  his  Treatise  on  Sales, 
after  a  full  examination  and  discussion  of  the  late  English  cases,  states 
the  rule  in  force  in  England  at  this  time  in  th.?i  following  terms :  "A 
sale  of  personal  chattels  implies  an  affirmation  by  the  vendor  that  the 
chattel  is  his,  and  therefore  he  warrants  the  title,  unless  it  be  shown 
by  the  facts  and  circumstances  of  the  sale  that  the  vendor  did  not 
intend  to  assert  ownership,  but  only  to  transfer  such  interest  as  he 
might  have  in  the  chattel  sold."  2  Benj.  Sales,  (Corbin's  Ed.)  §§  945- 
961. 

In  this  country  the  distinction  between  sales  where  the  vendor  is 
in  possession  and  where  he  is  out  of  possession,  with  respect  to  im- 
plied warranty  of  title,  has'  been  generally  recognized ;  but  the  tend- 
ency of  later  decisions  is  against  the  recognition  of  such  a  distinction, 
and  favorable  to  the  modern  English  rule.  Id.  §  962,  note  21.  Bid. 
War.  §§  246,  247.  The  American  editor  of  the  ninth  edition  of 
Smith's  Leading  Cases,  in  the  note  to  Chandelor  v.  Lopus,  after  citing 
the  cases  in  this  country  which  have  held  that  the  rule  of  cavedt 
emptor  applies  to  sales  where  the  vendor  is  out  of  possession,  re- 
marks that  in  most  of  them  what  was  said  on  that  point  was  obite  ■ 
dicta,  and  observes  "that  there  seems  no  reason  why,  in  every  casi 
where  the  vendor  purports  to  sell  an  absolute  and  perfect  title,  he 
should  not  be  held  to  warrant  it."  1  Smith,  Lead.  Cas.  (Edson's  Ed.) 
344.  In  Wood  v.  Sheldon  [42  N.  J.  Law,  421,  36  Am.  Rep.  523] 
Chief  Justice  Beasley,  in  delivering  the  opinion  of  the  court,  adopted, 
in  terms,  the  rule  stated  by  Mr.  Benjamin,  and  made  it  the  foundation 
of  decision.  The  precise  question  now  under  discussion  did  not  then 
arise.  In  Eichholz  v.  Bannister,  17  C.  B.  (N.  S.)  708-721,  Erie,  C. 
J.,  said :  "I  consider  it  to  be  clear  upon  the  ancient  authorities  that, 
if  the  vendor  of  a  chattel  by  word  or  conduct  gives  the  purchaser  to 
understand  that  he  is  the  owner,  that  tacit  representation  forms  part 
of  the  contract;  and  that  if  he  is  not  the  owner  his  contract  is  broken. 
*  *  *  In  almost  all  the  transactions  of  sale  in  common  life,  the 
seller,  by  the  very  act  of  selling,  holds  out  to  the  buyer  that  he  is 
the  owner  of  the  article  he  offers  for  sale." 

In  that  case  it  was  held  that  on  the  sale  of  goods  in  an  open  shop 
or  warehouse,  in  the  ordinary  course  of  business,  a  warranty  of  title 
was  implied ;  but  there  is  a  line  of  English  cases  holding  that,  where 
Wood  w.  Sales — 23 


354  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

the  facts  and  circumstances  show  that  the  purpose  of  the  sale,  as  it 
must  have  been  understood  by  the  parties  at  the  time,  was  not  to  con- 
vey an  absolute  and  indefeasible  title,  but  only  to  transfer  the  title 
or  interest  of  the  vendor,  no  warranty  of  title  will  be  implied.  In 
this  proposition  the  fact  that  the  vendor  is  in  or  out  of  possession  is 
jonly  a  circumstance  of  more  or  less  weight,  according  to  the  nature 
/and  circumstances  of  the  particular  transaction.  Thus  in  Alorley  v. 
'  Attenborough,  3  Exch.500,  the  holding  was  that  on  a  sale  by  a  pawn- 
broker at  public  auction  of  goods  pledged  to  him  in  the  way  of  busi- 
ness there  was  no  implied  warranty  of  absolute  title,  the  undertaking 
of  the  vendor  being  only  that  the  subject  of  the  sale  was  a  pledge, 
and  irredeemable  by  the  pledgeor.  In  Chapman  v.  Speller,  14  Q.  B. 
621,  the  defendant  bought  goods  at  a  sheriff's  sale  for  il8.  The 
plaintiff,  who  was  present  at  the  sheriff's  sale,  bought  of  the  defend- 
ant his  bargain  for  £23.  The  plaintiff  was  afterwards  forced  to  give 
up  the  goods  to  the  real  owner.  He  then  sued  the  defendant,  alleging 
a  warranty  of  title.  The  court  held  that  there  was  no  implied  war- 
ranty of  title  nor  failure  of  consideration;  that  the  plaintiff  paid  the 
defendant,  not  for  the  goods,  but  for  the  right,  title,  and  interest  the 
latter  had  acquired  by  his  purchase,  and  that  this  consideration  had 
not  failed.  In  Bagueley  v.  Hawley,  L.  R.  2  C.  P.  625,  a  like  decision 
was  made,  where  the  defendant  resold  to  the  plaintiff  a  boiler  the  for- 
mer had  bought  at  a  sale  under  a  distress  for  poor  rates,  the  plaintiff 
having  knowledge  at  the  time  of  his  purchase  that  the  defendant  had 
bought  it  at  such  sale. 

In  Hall  V.  Conder,  2  C.  B.  (N.  S.)  22,  the  plaintiff,  by  an  agree- 
ment in  writing  by  which,  after  reciting  that  he  had  invented  a  meth- 
od of  preventing  boiler  explosions,  and  had  obtained  a  patent  therefor 
within  the  United  Kingdom,  transferred  to  the  defendant  "the  one- 
half  of  the  English  patent"  for  a  consideration  to  be  paid.  In  a  suit 
to  recover  the  consideration  the  defendant  pleaded  that  the  invention 
was  wholly  worthless,  and  of  no  public  utility  or  advantage  whatever, 
and  that  the  plaintiff  was  not  the  true  and  first  inventor  thereof.  On 
demurrer  the  plea  was  held  bad,  for  that,  in  the  absence  of  any  alle- 
gation of  fraud,  it  must  be  assumed  that  the  plaintiff  was  an  inven- 
tor, and  there  was  no  warranty,  express  or  implied,  either  that  he  was 
the  true  and  first  inventor  within  the  statute  of  James,  or  that  the  in- 
vention was  useful  or  new ;  but  that  the  contract  was  for  the  sale  of 
the  patent,  such  as  it  was,  each  party  having  equal  means  of  ascer- 
taining its  value,  and  each  acting  on  his  own  judgment.  A  like  deci- 
sion was  made  in  Smith  v.  Neale,  2  C.  B.  (N.  S.)  67. 

Chief  Justice  Erie,  in  his  opinion  in  Eichholz  v.  Bannister,  describes 
Morley  v.  Attenborough,  Chapman  v.  Speller,  and  Hall  v.  Conder, 
as  belonging  to  the  class  of  cases  where  the  conduct  of  the  seller  ex- 
presses, at  the  time  of  the  contract,  that  he  merely  contracts  to  sell 
such  title  as  he  himself  has  in  the  thing.    The  opinion  is  valuable,  in 


Sec.  2)  IMPLIED   WARRANTY   OF   TITLE  355 

that,  while  it  rescues  the  comiTJon-law  rule  of  implied  warranty  of 
title  from  the  assaults  of  distinguished  judges  who  held  that  caveat 
emptor  applied  to  sales  in  all  cases,  and  that  in  the  absence  of  express 
warranty  or  fraud  the  purchaser  was  remediless,  it  also  placed  the  rule 
under  the  just  limitation  that  it  should  not  apply  where  the  circum- 
stances showed  that  the  sale  purported  to  be  only  a  transfer  of  the 
vendor's  title.  Expressions  such  as  "if  a  man  sells  goods  as  his  own, 
and  the  title  is  deficient,  he  is  liable  to  make  good  the  loss,"  (2  Bl. 
Comm.  451,)  or  "if  he  sells  it  as  his  own,  and  not  as  agent  for  an- 
other, and  for  a  fair  price,  he  is  understood  to  warrant  the  title,"  (2 
Kent,  Comm.  478,) — as  a  statement  of  the  principle  on  which  the  doc- 
trine of  implied  warranty  of  title  rests,  is  not  inconsistent  with  the 
principle  adopted  by  Chief  Justice  Erie.  Stating  the  principle  in  the 
negative  form  adopted  in  Morley  v.  Attenborough,  that  there  is  no 
undertaking  by  the  vendor  for  title  unless  there  be  an  express  warran- 
ty of  title,  or  an  equivalent  to  it  by  declaration  or  conduct,  affects  only 
the  order  of  proof.  It  was  conceded  in  that  case  that  the  pawnbro- 
ker selling  his  goods  undertook  that  they  had  been  pledged,  and  were 
irredeemable  by  the  pledgeor,  and  if  it  be  assumed,  as  I  think  it  must 
be,  that  the  act  of  selling  amounts  to  an  affirmation  of  title  of  some 
sort,  but  that  its  force  and  effect  may  be  explained,  qualified,  or  en- 
tirely overcome  by  the  facts  and  circumstances  connected  with  the 
transaction,  the  difference  between  Morley  v.  Attenborough  and  Eich- 
holz  v.  Bannister  will  rarely  be  of  any  practical  importance.     *     *     * 


BURT  V.  DEWEY. 
(Court  of  Appeals  of  New  York,  1869.     40  N.  Y.  2S3,  100  Am.  Dee.  482.) 

This  was  an  action  to  recover  damages  for  the  breach  of  an  im- 
plied warranty  of  title  to  a  horse. 

The  plaintiff  testified  that  in  December,  1852,  he  bought  a  horse 
of  the  defendant,  and  paid  him  therefor  eighty  dollars;  that  he 
afterwards  sold  the  horse,  which  subsequently  passed  through  the 
hands  of  several  persons.  While  the  horse  was  in  possession  of  plain- 
tiff, he  was  identified  as  a  horse  formerly  in  possession  of  Joseph 
Dysart;  and  Dysart  testified  that  said  horse  was  stolen  from  him, 
a  short  time  before  the  purchase  by  the  plaintiff.  It  was  then  shown 
that  in  1856,  an  action  was  commenced  in  a  Justice's  Court  by  Dysart 
against  the  plaintiff  for  the  horse,  and  a  judgment  recovered  for  its 
value.  It  did  not  appear  that  the  defendant  had  any  notice  of  that 
action,  or  that  the  judgment  had  been  paid. 

A  motion  was  made  for  a  nonsuit,  the  plaintiff  waiving  all  claim 
for  nominal  damages,  which  motion  was  thereupon  granted  on  the 
ground  that  it  did  not  appear  that  plaintiff  had  paid  the  Dysart  judg- 
ment recovered  against  him. 


356  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

On  appeal  the  General  Term  reversed  the  judgment,  and  ordered 
a  new  trial;  from  that  order  the  defendant  has  appealed  to  this  court. 
1  JamiCS,  J.^^  *  *  *  Tlie  important  question  in  this  case  is, 
Ivhether  the  plaintiff  could  recover  without  proving  actual  loss  or 
fcamage,  by  reason  of  defendant's  want  of  title  to  the  chattel.  There 
'was  no  evidence  that  plaintilT  or  his  vendees  had  ever  been  disturbed 
in  their  possession  or  enjoyment  of  the  property;  nor  had  plaintiff 
ever  parted  with  any  money  or  property  in  consequence  thereof. 

It  is  true  a  judgment  had  been  recovered  against  the  plaintiff  for 
the  value  of  the  horse;  but  until  satisfied  it  only  established  a  liability, 
not  a  loss.  It  might  never  be  enforced.  As  the  true  owner  was  de- 
prived of  his  property  by  a  felony,  he  might  pursue  others,  through 
whose  hands  it  had  passed,  even  the  defendant,  and  satisfy  his  claim 
against  them.  Until  a  satisfaction,  the  owner's  rights  of  action  against 
others  than  plaintiff  remain  intact. 

In  its  operation  and  legal  bearings  this  case  is  very  like  a  covenant 
of  warranty  for  quiet  enjoyment  in  the  sale  of  land.  If  A.  convey 
land  to  B.,  and  B.  to  C,  and  C.  to  D.,  all  with  covenants  of  warranty 
for  quiet  enjoyment,  and  D.  is  evicted,  he  may  sue  any  or  all  of  the 
preceding  covenantors  till  he  obtain  satisfaction ;  but  no  intermediate 
convenantee  can  sue  his  covenantor  till  he  himself  has  been  compelled 
to  pay  damages  upon  his  own  warranty.  Withy  v.  Mumford,  5  Cow. 
137;    Baxter  v.  Ryerss,  13  Barb.  267. 

In  the  case  of  breach  of  an  implied  warranty  of  title  to  a  chattel 
the  vendee  is  not  bound  to  await  legal  action  against  him.  If  satis- 
fied of  the  insufficiency  of  his  vendor's  title,  and  that  the  true  owner 
would  recover  the  property  in  an  action,  he  may  surrender  it  and  re- 
cover its  value  in  an  action  against  his  vendor,  by  affirmatively  es- 
tablishing that  the  vendor  was  without  title ;  or  the  vendor  may  await 
the  prosecution  of  an  action.  If  the  vendor  be  notified  of  the  action 
and  required  to  defend,  a  judgment,  if  obtained,  would  be  conclusive 
as  to  his  want  of  title;  but  if  not  notified  and  judgment  is  obtained, 
the  onus  of  showing  want  of  title  would  rest  upon  the  vendee,  the 
same  as  if  surrendered  without  action.  Sweetman  v.  Prince,  26  N. 
Y.  224,  232. 

If  the  property  be  surrendered  to  the  true  owner,  then  the  vendee's 
loss  and  damage  is  established ;  but  if  a  judgment  be  had  against 
him,  either  with  or  without  notice,  the  vendee's  loss  or  damage  is 
not  established  without  proofs  of  satisfaction  or  payment  of  the 
judgment.  In  this  case  the  true  owner  (as  in  cases  of  covenants  of 
warranty  running  with  the  land)  would  have  a  right  of  action  against 
any  possessor  subsequent  to  the  larceny;  and  that  possessor  against 
any  prior  covenantors  which  might  be  pursued  until  this  damage  or 
loss  is  satisfied ;  hence  any  intermediate  vendee  or  covenantee  could 
not  be  permitted  to  maintain  an  action  against  his  immediate  war- 

11  Part  of  the  opinion  is  omitted. 


Sec.  3)  IMPLIED   WARRANTY    OP    QUALITY  357 

rantor  or  covenantor  in  the  absence  of  fraud  without  proof  of  dam- 
age by  loss  of  property  or  compulsory  payment  of  money. 

I  think  the  plaintiff  on  the  trial,  by  omitting  to  prove  payment  of 
the  judgment  obtained  against  him,  failed  to  establish  a  right  of  action 
as  against  the  defendant,  and  hence  was  properly  nonsuited. 

The  judgment  of  the  General  Term  should  be  reversed  and  that 
of  the  Circuit  affirmed. 


SECTION  3.— IMPLIED  WARRANTY  OF  QUALITY 


JONES  et  al.  v.  JUST. 

(Court  of  Queen's  Bench,  1868.     L.  R.  3  Q.  B.  197.) 

MiiLLOR,  J.^^  In  this  case,  on  the  trial  before  Blackburn,  J.,  at 
Liverpool,  it  appeared  that  the  plaintiffs,  through  Messrs.  Beneke  & 
Co.,  their  brokers,  entered  into  a  contract  with  the  defendant  for  the 
purchase  of  a  quantity  of  Manilla  hemp,  to  arrive. 

The  sold  note  was  in  the  following  terms :  "Liverpool,  19th  Oct., 
1865.  We  have  this  day  sold  for  you  the  following  goods  to  Messrs. 
J.  A.  Beneke  &  Co.  J.  H.  V.  200  bales  Manilla  hemp,  expected  to  ar- 
rive p.  Richard  Cobden,  @  Singapore,  for  Liverpool, 309 

expected  to  arrive  pr.  Christopher  Newton,  @  Singapore  for  Liver- 
pool,   209 expected  to  arrive  pr.  Fortitude @ 

c-                r      T      ^           JH  193)  ,    ,  , 

Singapore  for  London,      ^   ,       ^    expected  to  arrive  pr. 

Opher,  @  Singapore  for  Liverpool,  @  £38  10s.  pr.  ton  of  2240  lbs., 
cost  freight  and  insurance.  Shipping  weights.  Payment,  cash  against 
shipping  documents  on  21st  Oct.  1865,  less  2i/2  %  discount." 

The  shipping  documents  were  duly  delivered  to  the  plaintiffs,  and 
the  price  was  paid.  All  the  vessels  named  in  the  contract  arrived  in 
due  course,  with  the  respective  numbers  of  bales  of  hemp  having 
marks  corresponding  to  those  specified  in  the  contract  on  board;  and 
the  bales  were  delivered  to  the  plaintiffs.  On  examination  of  the 
bales  it  was  found  that  the  whole  of  those  marked  J.  H.  V.  were  in 
such  a  state  as  to  afford  strong  evidence  that  they  had  at  some  time, 
probably  from  a  shipwreck  when  on  the  voyage  from  Manilla  to 
Singapore,  been  wetted  through  with  salt  water,  had  afterwards  been 
unpacked  and  dried,  and  then  repacked  in  the  bales  which  were  after- 
wards shipped  at  Sinpagore. 

Manilla  hemp  is  divided  into  several  quaUties.  The  hemp  in  the 
bales  in  question,  if  in  good  condition,  would  have  been  what  is  called 

12  The  statement  of  facts  is  omitted. 


358  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

"fair  current  iNIanilla  hemp,"  which  is  not  the  lowest  quaUty;  but  in 
all  the  bales  the  hemp  was  damaged  to  some  extent,  though  not  so 
far  as  to  make  it  lose  the  character  of  hemp. 

After  some  correspondence  between  the  parties,  the  hemp  was  sold 

by  auction  by  the  plaintiffs'  orders  as  "^Manilla  hemp,  with  all  faults," 

and  at  the  auction  it  realized  about  75  per  cent,  of  the  price  which 

similar  hemp  would  have  fetched  if  undamaged.     The  price  of  hemp 

had  risen  considerably  since  the  contract,  so  that  the  proceeds  of  the 

/sale  w-ere  very  nearly  equal  to  the  invoice  price.     There  was  no  at- 

j tempt  to  shew  that  the  defendant  knew  of  the  state  in  which  the  hemp 

/had  been  shipped  at  Singapore. 

'  At  the  close  of  the  plaintiffs'  case,  Mr.  Brett,  for  the  defendant, 
contended  that,  in  point  of  law,  under  this  written  contract,  there  was 
no  further  condition  or  warranty  than  that  the  bales  on  their  arrival 
should  answer  the  description  of  bales  of  Manilla  hemp,  which  they 
did,  as  was  proved  by  the  fact  that  the  hemp,  though  sold  with  a  stig- 
ma upon  it,  fetched  a  price  only  25  per  cent,  below  that  of  sound 
hemp ;  and  that  as  to  quality  or  condition  there  was  no  warranty ; 
that  consequently  the  maxim  caveat  emptor  applied. 

The  learned  judge  expressed  an  opinion  adverse  to  this  view.  He 
said:  "I  think  that  the  question  is  for  the  jury,  whether  what  was 
supplied  under  this  contract  was,  when  shipped  at  Singapore,  such  as 
to  answer  the  description  of  reasonably  merchantable  Manilla  hemp, 
that  being  the  warranty  which,  I  think,  the  law  implies  in  a  contract  to 
supply,  as  this :  though  it  would  be  different  in  a  sale  of  specific 
things  which  the  purchaser  might  examine,  or  of  things  sold  by  sam- 
ple. And  I  think  the  question  whether  it  is  fairly  and  reasonably 
merchantable,  is  a  question  of  more  or  less,  which  must  be  left  to  the 
jury  as  reasonable  men  to  determine."  The  judge  then  reserved  leave 
to  move  to  enter  the  verdict  for  the  defendant,  if  there  was  no  evi- 
dence to  go  to  the  jury  of  a  breach  of  warranty. 

Upon  this  intimation  of  opinion,  the  counsel  addressed  the  jury, 
and  the  case  was  left-  to  them  substantially  to  the  effect  above  stated ; 
and  the  jury  were  further  told  that  if  they  found  for  the  plaintiffs, 
the  damages  should  be  measured  by  the  rate  which  the  hemp  was 
worth  when  it  arrived  compared  with  the  rate  which  the  same  hemp 
would  have  realized  had  it  been  shipped  in  the  state  in  which  it  ought 
to  have  been  shipped :  thus,  in  effect,  giving  the  plaintiffs  the  benefit 
of  the  rise  in  the  market. 

The  jury  found  for  the  plaintififs,  damages  i756. 

Mr.  Brett,  in  the  ensuing  Term,  obtained  a  rule  to  enter  the  verdict 
for  the  defendant,  pursuant  to  the  leave  reserved;  or  for  a  new  trial, 
on  the  ground  of  misdirection  as  to  the  measure  of  damages,  which 
he  contended  ought  at  most  to  have  been  the  diflference  between  the 
value  of  the  article  actually  delivered,  viz.,  fair  average  Manilla  hemp 


Sec.  3)  IMPLIED   WARRANTY    OP    QUALITY  359 

in  a  damaged  state,  and  the  value  of  sound  Manilla  hemp  of  the  low- 
est quality  which  might  have  been  supplied  at  Singapore  under  this 
contract.  The  other  objections  to  the  direction  were  substantially  only 
varied  modes  of  putting  the  point  reserved. 

We  thought  that  if  the  contract  had  the  effect  which  the  direction 
stated  it  to  have,  the  true  measure  of  the  damages  was  given,  as  it  put 
the  plaintiffs  in  the  position  in  which  they  would  have  been  if  the  con- 
tract had  been  fulfilled ;  but  we  took  time  to  consider  the  question  as 
to  what  the  contract  really  was,  which  is  no  doubt  one  of  importance 
and  difficulty. 

After  careful  consideration,  we  are  of  opinion  that  Blackburn,  J.'s, 
direction  was  substantially  correct.  On  the  argument  before  us,  it 
was  contended  that  the  contract  was  performed  on  the  part  of  the  de- 
fendant by  the  shipping  at  Singapore  of  an  article  which  answered 
the  description  of  "Manilla  hemp,"  although  at  that  time  it  was  so 
damaged  as  to  have  become  unmerchantable.  It  was  said  that  there 
being  no  fraud  on  the  part  of  the  vendor,  and  both  parties  being  equal- 
ly ignorant  of  the  past  history  and  actual  condition  of  the  article  con- 
tracted for,  and  neither  of  them  having  had  the  opportunity  of  in-^ 
specting  it,  it  was  the  duty  of  the  vendees  to  have  stipulated  for  a 
merchantable  article  if  that  was  what  they  intended  to  contract  for. 
In  other  words,  it  was  said  that  the  maxim,  caveat  emptor,  applied  in ' 
such  a  case,  in  the  same  way  as  on  a  sale  of  a  specific  article  by  a 
person  not  being  the  manufacturer  or  producer,  even  though  the  de- 
fect was  latent  and  not  discoverable  upon  examination. 

We  are  of  opinion  that  there  is  a  great  distinction  between  the 
present  case  and  the  sale  of  goods  in  esse,  which  the  buyer  may  in- 
spect, and  in  which  a  latent  defect  may  exist,  although  not  discover- 
able on  inspection. 

The  cases  which  bear  upon  the  subject  do  not  appear  to  be  in  con- 
flict, when  the  circumstances  of  each  are  considered.  They  may,  we 
think,  be  classified  as  follows : 

First,  where  goods  are  in  esse,  and  may  be  inspected  by  the  buyer,  I 
and  there  is  no"  fraud  on  the  part  of  the  seller,  the  maxim  caveat' 
emptor  applies,  even  though  the  defect  which  exists  in  them  is  latent, 
and  not  discoverable  on  examination,  at  least  where  the  seller  is  nei- 
ther the  grower  nor  the  manufacturer :  Parkinson  v.  Lee,  2  East, 
314.  The  buyer  in  such  a  case  has  the  opportunity  of  exercising  his 
judgment  upon  the  matter;  and  if  the  result  of  the  inspection  be  un- 
satisfactory, or  if  he  distrusts  his  own  judgment  he  may  if  he  chooses 
require  a  warranty.  In  such  a  case,  it  is  not  an  implied  term  of  the 
contract  of  sale  that  the  goods  are  of  any  particular  quality  or  are 
merchantable.  So  in  the  case  of  the  sale  in  a  market  of  meat,  which 
the  buyer  had  inspected,  but  which  was  in  fact  diseased,  and  unfit 
for  food,  although  that  fact  was  not  apparent  on  examination,  and  the 
seller  was  not  aware  of  it,  it  was  held  that  there  was  no  implied  war- 


360  OBLIGATIONS    OF    SELLER    AND   BUYEK  CCh.  4 

ranty  that  it  was  fit  for  food,  and  that  the  maxim  caveat  emptor  ap- 
phed.    Emmerton  v.  jMathews,  7  U.  &  N.  586,  31  L.  J.  (Ex.)  139. 

Secondly,  where  there  is  a  sale  of  a  definite  existing  chattel  spe- 
cifically described,  the  actual  condition  of  which  is  capable  of  being 
ascertained  by  either  party  there  is  no  implied  warranty.  Barr  v.  Gib- 
son, 3  :\I.  &  W.  390. 

Thirdly,  where  a  known  described  and  defined  article  is  ordered  of 
1  manufacturer,  although  it  is  stated  to  be  required  by  the  purchaser 
for  a  particular  purpose,  still  if  the  known,  described,  and  defined 
;hing  be  actually  supplied,  there  is  not  warranty  that  it  shall  answer 
Lhe  particular  purpose  intended  by  the  buyer.  Chanter  v.  Hopkins, 
^  M.  &  W.  399;  Ollivant  v.  Bayley,  5  Q.  B.  288. 

Fourthly,  w^here  a  manufacturer  or  a  dealer  contracts  to  supply  an 
article  which  he  manufactures  or  produces,  or  in  which  he  deals,  to 
be  applied  to  a  particular  purpose,  so  that  the  buyer  necessarily  trusts 
to  the  judgment  or  skill  of  the  manufacturer  or  dealer,  there  is  in 
that  case  an  implied  term  or  warranty  that  it  shall  be  reasonably  fit 
for  the  purpose  to  which  it  is  to  be  applied.  Brown  v.  Edgington,  2 
Man.  &  G.  279;  Jones  v.  Bright,  5  Bing.  533.  In  such  a  case  the 
buyer  trusts  to  the  manufacturer  or  dealer,  and  relies  upon  his  judg- 
ment and  not  upon  his  own. 

Fifthly,  where  a  manufacturer  undertakes  to  supply  goods,  man- 
ufactured by  himself,  or  in  which  he  deals,  but  which  the  vendee  has 
not  had  the  opportunity  of  inspecting,  it  is  an  implied  term  in  the 
contract  that  he  shall  supply  a  merchantable  article.  Laing  v.  Fidgeon, 
4  Camp.  169 ;  6  Taunt.  108.  •  And  this  doctrine  has  been  held  to  ap- 
ply to  the  sale  by  the  builder  of  an  existing  barge,  which  was  afloat 
but  not  completely  rigged  and  furnished;  there,  inasmuch  as  the  buy- 
er had  only  seen  it  when  built,  and  not  during  the  course  of  the  build- 
ing, he  was  considered  as  having  relied  on  the  judgment  and  skill  of 
the  builder  that  the  barge  was  reasonably  fit  for  use.  Shepherd  v. 
Pybus,  3  Man.  &  G.  868. 

If,  therefore,  it  must  be  taken  as  established  that,  on  the  sale  of 
goods  by  a  manufacturer  or  dealer  to  be  applied  to  a  particular  pur- 
pose, it  is  a  term  in  the  contract  that  they  shall  reasonably  answer  that 
purpose,  and  that  on  the  sale  of  an  article  by  a  manufacturer  to  a 
vendee  who  has  not  had  the  opportunity  of  inspecting  it  during  the 
manufacture,  that  it  shall  be  reasonably  fit  for  use,  or  shall  be  mer- 
chantable, as  the  case  may  be,  it  is  difficult  to  understand  why  a  sim- 
ilar term  is  not  to  be  implied  on  a  sale  by  a  merchant  to  a  merchant 
or  dealer  who  has  had  no  opportunity  of  inspection.  Accordingly  in 
the  case  of  Bigge  v.  Parkinson,  7  h'  &  N.  955,  31  L.  J.  (Ex.)  301, 
upon  a  contract  to  supply  provisions  and  stores  to  a  ship  guaranteed 
to  pass  the  survey  of  the  East  India  Company's  officers,  it  was  held 
by  the  Court  of  Exchequer  Chamber  that  there  was  an  implied  term 
in  the  contract,  that  the  stores  should  be  reasonably  fit  for  the  purpose 


Sec.  3)  IMPLIED   WARRANTY    OF    QUALITY  361 

for  which  they  were  to  be  suppHed,  notwithstanding  that  the  vendor 
had  specially  contracted  that  they  should  pass  the  survey  of  the  East 
India  Company's  officers. 

We  are  aware  of  no  case  in  which  the  maxim,  caveat  emptor,  has 
been  applied  where  there  has  been  no  opportunity  of  inspection,  or 
where  that  opportunity  had  not  been  waived.  The  case  of  Gardiner 
V.  Gray,  4  Camp.  144,  145,  appears  strongly  in  point  to  the  present. 
The  contract  was  for  the  sale  of  twelve  bales  of  waste  silk  imported 
from  the  continent,  and  before  it  was  landed  samples  were  shewn  to 
plaintiff's  agent,  and  the  bargain  was  then  made,  but  without  refer- 
ence to  the  sample.  It  was  purchased  in  London,  and  sent  to  Man- 
chester, and  on  its  arrival  there  was  found  to  be  of  a  quality  not  sale- 
able under  the  denomination  of  "waste  silk."  Lord  Ellenborough  ex- 
pressed his  opinion  that  "the  purchaser  under  such  circumstances  had 
a  right  to  expect  a  saleable  article  answering  the  description  in  the 
contract.  Without  any  particular  warranty,  this  is  an  implied  term  in 
every  such  contract.  Where  there  is  no  opportunity  to  inspect  the 
commodity  the  maxim,  caveat  emptor,  does  not  apply." 

In  general,  on  the  sale  of  goods  by  a  particular  description,  whether 
the  vendee  is  able  to  inspect  them  or  not,  it  is  an  implied  term  of  the 
contract  that  they  shall  reasonably  answer  such  description,  and  if  they 
do  not,  it  is  unnecessary  to  put  any  other  question  to  the  jury;  thus, 
in  Wieler  v.  SchiHzzi,  17  C.  B.  619,  25  L.  J.  (C  P.)  89,  and  in  Josling 
V.  Kingsford,  13  C.  B.  (N.  S.)  447,  32  L.  J.  (C  P.)  94,  the  substantial 
question  put  to  the  jury  was,  did  the  goods  delivered  reasonably  an- 
swer the  description  in  the  contract?  And  the  answer  of  the  jury  be- 
ing that  they  did  not,  that  answer  sufficed  to  determine  each  case.  In 
one  of  those  cases  there  was  no  opportunity  to  inspect,  in  the  other 
there  was.  So  in  the  case  of  Nichol  v.  Godts,  10  Ex.  191,  23  L.  J. 
(Ex.)  314,  where  the  contract  was  for  the  sale  of  "foreign  refined 
rape  oil,  warranted  only  equal  to  sample,"  it  was  held  in  an  action 
for  not  accepting  the  article  tendered,  that  it  was  necessary  for  the 
vendor  to  establish  that  it  was  not  only  equal  to  the  sample  as  to  qual- 
ity, but  that  it  was  in  fact  such  an  article  as  answered  the  description 
of  foreign  refined  rape  oil.  In  Wieler  v.  Schilizzi,  17  C.  B.  619,  25 
L.  J.  (C.  P.)  89,  in  which  there  was  no  opportunity  to  inspect,  and  no 
express  stipulation  as  to  quality,  it  would  have  been  necessary,  had  the 
finding  of  the  jury  affiimed  that  the  article  delivered  did  in  fact  an- 
swer the  description  of  "Calcutta  linseed,"  to  determine  whether  the 
judge  ought  not  to  have  put  the  further  question,  was  it  reasonably 
merchantable?  It  certainly  was  not  determined  that  such  a  question 
would  have  been  wrong,  though  perhaps  the  words  "tale  quale"  in 
that  contract  might  have  the  effect  of  excluding  any  such  warranty ; 
and  Willes,  J.,  in  his  judgment,  17  C.  B.  at  p.  624,  said  that  the  pur- 
chaser in  that  case  "had  a  right  to  expect,  not  a  perfect  article,  but  an 
article  which  would  be  saleable  in  the  market  as  Calcutta  linseed." 


362  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

It  appears  to  us  that,  in  every  contract  to  supply  goods  of  a  speci- 
fied description  which  the  buyer  has  no  opportunity  to  inspect,  the 
goods  must  not  only  in  fact  answer  the  specific  description,  but  must 
also  be  saleable  or  merchantable  under  that  description.  In  the  words 
of  Lord  Ellenborough  in  Gardiner  v.  Gray,  4  Camp,  at  p.  145,  "With- 
out any  particular  warranty  this  is  an  implied  term  in  every  such  con- 
tract." In  the  present  case  the  question  appears  to  be,  was  the  article 
as  delivered  at  Singapore  merchantable  or  saleable  in  the  market  un- 
der the  description  of  "Manilla  hemp?"  Blackburn,  J.,  appears  to 
have  divided  that  question  into  two,  viz. :  Was  the  article,  in  fact, 
jManilla  hemp?  Secondly,  was  it  merchantable?  The  precise  mode 
of  submitting  the  question  is  not  material,  provided  the  substantial  di- 
rection was  correct,  as  we  think  it  was. 

The  counsel  for  the  defendant  relied  upon  a  case  of  Turner  v. 
Mucklow,  8  Jur.  (N.  S.)  870,  6  L.  T.  (N.  S.)  690,  tried  before  Mellor, 
J.,  in  the  year  1862,  at  Liverpool.  In  that  case  the  plaintiffs  were 
calico  printers,  and  had  contracted  to  sell  to  the  defendant,  who  was 
a  drysalter  and  dye  extract  manufacturer,  a  boat-load  of  "spent  mad- 
der." The  defendant,  not  finding  the  spent  madder  supplied  suitable 
for  his  purpose,  repudiated  the  contract,  and  refused  to  pay  for  it. 
It  appeared  that  the  plaintiff's,  in  their  trade  as  calico  printers,  used 
large  quantities  of  madder  roots,  having  extracted  from  which  the 
finer  colouring  matter  by  chemical  processes  they  placed  the  refuse  or 
spent  madder  in  a  large  heap  in  their  yard.  They  occasionally  used 
portions  of  it,  and  by  the  application  of  other  chemical  processes  ex- 
tracted from  it  a  colouring  matter  called  garancine,  but  they  did  not 
manufacture  spent  madder  for  sale.  On  a  previous  occasion  they  had 
sold  to  the  defendant,  who  was  a  manufacturer  of  garancine,  a  small 
c[uantity  of  spent  madder  from  their  accumulation ;  and  on  the  oc- 
casion in  question  the  defendant,  by  letter,  bargained  with  the  plain- 
tiff's for  a  quantity  of  their  spent  madder,  which  he  did  not  inspect 
before  delivery,  and  upon  a  portion  of  it  being  used  by  the  defendant 
for  the  purpose  of  manufacturing  garancine,  it  turned  out  that  the 
garancine  produced  by  it  was  of  very  inferior  quality  and  unmarket- 
able. The  jury  were  directed  that  if  the  article  supplied  fairly  and 
reasonably  answered  the  description  of  "spent  madder,"  there  was  no 
implied  warranty  that  it  was  of  any  particular  quality  or  fitness  for 
any  particular  use,  and  upon  that  direction  the  jury  found  a  verdict 
for  the  plaintiffs ;  and  upon  the  argument  on  a  rule  which  was  ob- 
tained for  a  new  trial,  on  the  ground  of  misdirection,  the  Court  of 
Exchequer  held  the  direction  to  be  right;  Martin,  B.,  declaring  his 
opinion  to  be  "that  no  direction  was  ever  more  correct." 

In  that  case  it  is  to  be  observed  that  the  defendant  had  the  oppor- 
tunity, if  he  had  chosen  to  avail  himself  of  it,  to  inspect  the  heap  of 
s'pent  madder ;  he  knew  that  it  was  the  refuse  madder  after  it  had 
gone  through  the  plaintiffs'  processes,  and  that  it  was  not  manufac- 


Sec.  3)  IMPLIED  WARRANTY  OF  QUALITY  363 

tured  for  sale.  These  circumstances  entirely  distinguish  that  case 
from  the  present. 

The  counsel  for  the  defendant  also  relied  upon  the  statute  19  & 
20  Vict.  c.  60,  §  5/^  as  a  sort  of  implied  legislative  declaration  of  the 
law  of  England  upon  that  subject  in  favour  of  his  argument;  but, 
upon  examining  the  section  referred  to,  it  does  not  appear  to  bear  out 
that  view,  for  all  that  it  declares  is,  that  a  seller  of  goods,  without 
knowledge  that  they  are  defective  or  of  bad  quality,  shall  not  be  held 
to  have  warranted  their  quality  or  sufficiency. 

It  has  already  appeared  that  there  is  not  in  general,  on  the  sale  of 
goods  in  England  to  be  supplied,  an  implied  warranty  that  they  shall 
be  of  any  particular  quality  or  sufficiency  for  any  particular  purpose, 
but  merely  that  they  shall  be  merchantable  goods  of  the  description 
bargained  for.  The  present  case  depends  on  the  distinction  between  a 
sale  of  particular  articles  and  a  contract  to  supply  articles  of  a  par- 
ticular kind. 

The  authority  of  Chancellor  Kent,  Kent's  Commentaries,  vol.  2,  p. 
479  of  the  6th  Ed.,  the  last  by  the  author  himself,  (11th  Ed.,  pp.  633- 
635,)  was  also  appealed  to ;  but  as  the  American  cases  which  he  cites 
are  generally  adverse  to  his  opinion,  it  can  at  most  be  said  that  the 
opinion  of  an  eminent  writer  is  opposed  to  the  authority  of  the  cases 
which  he  cites. 

It  appears  to  us,  in  the  result  of  this  case,  that  the  maxim  of 
caveat  emptor  cannot  apply,  and  that  it  must  be  assumed  that  the 
buyer  and  seller  both  contemplated  a  dealing  in  an  article  which  was 
merchantable.  The.  buyer  bought  for  the  purpose  of  sale,  and  the 
seller  could  not  on  any  other  supposition  than  that  the  article  was 
merchantable  have  found  a  customer  for  his  goods,  and  the  buyer  must 
be  taken  to  have  trusted  to  the  judgment,  knowledge,  and  information 
of  the  seller,  as  it  is  clear  that  he  could  exercise  no  judgment  of  his 
own;  and  this  appears  to  us  to  be  at  the  root  of  the  doctrine  of  im- 
plied warranty,  and  that  in  this  view  it  makes  no  difference,  whether 
the  sale  is  of  goods  specially  appropriated  to  a  particular  contract,  or 
to  goods  purchased  as  answering  a  particular  description. 

It  was  contended  further  by  the  defendant's  counsel  that  the  ship- 
pers at  Singapore  were  the  persons  who  selected  the  goods  in  ques- 
tion, and  that  the  defendant,  who  merely  sold  them  to  arrive,  was  as 
little  aware  of  their  true  condition  when  shipped  as  the  plaintiffs ;  but 
it  is  clear  that  the  defendant,  if  not  directly  connected  with  the  ship- 

13  "Where  goods  shall  after  the  passing  of  this  act  be  sold,  the  seller,  if 
at  the  time  of  the  sale  he  was  without  knowledge  that  the  same  were  de- 
fective or  of  bad  quality,  shall  not  be  held  to  have  warranted  their  quality 
or  sufficiency,  but  the  goods  with  all  faults  shall  be  at  the  risk  of  the  pur- 
chaser, unless  the  seller  shall  have  given  an  express  warranty  of  the  quality 
or  sufficiency  of  such  goods,  or  unless  the  goods  have  been  expressly  sold  for 
a  specified  and  particular  purpose,  in  which  case  the  seller  shall  be  consid- 
ered v/ithout  such  warranty  to  warrant  that  the  same  are  fit  for  such  pur- 
pose."    [This  statute  applies  only  to  Scotland.] 


364  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

pers  as  his  correspondents,  must  at  least  have  purchased  from  them, 
and  had  recourse  against  them  for  not  supplying  an  article  reasonably 
merchantable. 

The  remarks  of  Cockburn,  C.  J.,  on  the  argument  in  Bigge  v.  Park- 
inson, 7  H.  &  N.  at  p.  959,  though  not  in  terms  repeated  by  him  in  de- 
livering the  judgment  of  the  Court  of  Exchequer  Chamber,  are  really 
involved  in  it,  and  are  very  closely  in  point  here. 

We  are  therefore  of  opinion  that  Blackburn,  J.'s,  direction  was  right, 
and  that  this  rule  must  be  discharged. 

Rule  discharged. 


BARNARD  v.   KELLOGG. 

(Supreme  Court  of  the  L'uited  States,  1S70.     10  Wall.  3S.3,  19  L.  Ed.  9S7.) 

Error  to  the  Circuit  Court  for  the  District  of  Connecticut,  the 
case  being  this : 

In  the  summer  of  1864,  Barnard,  a  commission  merchant  resid- 
ing in  Boston,  Massachusets,  placed  a  lot  of  foreign  wool,  received 
from  a  shipper  in  Buenos  Ayres,  and  on  which  he  had  made  ad- 
vances, in  the  hands  of  Bond  &  Co.,  wool  brokers  in  Boston,  to 
sell,  with  instructions  not  to  sell  unless  the  purchaser  came  to  Boston 
and  examined  the  wool  for  himself.  These  brokers  sent  to  E.  N. 
Kellogg  &  Co.,  merchants  and  dealers  in  wool,  in  Hartford,  Con- 
necticut, at  their  request,  samples  of  the  different  lots  of  wool,  and 
communicated  the  prices  at  which  each  lot  could  be  obtained.  Kel- 
logg &  Co.,  in  reply,  offered  to  take  the  wool,  all  round,  at  fifty 
cents  a  pound,  if  equal  to  the  samples  furnished,  and  Bond  &  Co., 
for  their  principal,  on  Saturday,  the  6th  day  of  August,  by  letter  and 
telegram,  accepted  this  ofifer,  provided  Kellogg  &  Co.  examined  the 
wool  on  the  succeeding  Monday  and  reported  on  that  day  whether 
or  not  they  would  take  it.  Kellogg  &  Co.  acceded  to  this  condition, 
and  the  senior  member  of  the  firm  repaired  to  Boston  on  the  day 
named  and  examined  four  bales  in  the  broker's  office  as  fully  as  he 
desired,  and  was  offered  an  opportunity  to  examine  all  the  bales, 
and  have  them  opened  for  his  inspection.  This  he  declined  to  do, 
and  concluded  the  purchase  on  the  joint  account  of  all  the  plain- 
tiffs. Some  months  after  this,  on  opening  the  bales  it  was  ascer- 
tained that  a  portion  of  them  were  falsely  and  deceitfully  packed,  by 
placing  in  the  interior  rotten  and  damaged  wool  and  tags,  which  were 
concealed  by  an  outer  covering  of  fleeces  in  their  ordinary  state. 
This  condition  of  things  had  been  unknown  to  Barnard,  who  had 
acted  in  good  faith.  It  was,  however,  communicated  to  him,  and 
he  was  asked  to  indemnify  the  purchaser  against  the  loss  he  sustained 
in  consequence  of  it.  This  he  declined  to  do,  and  the  purchaser 
brought  this  suit.     The  declaration  counted: 


Sec.  3)  IMPLIED   WARRANTY    OF    QUALITY  365 

1st.  Upon  a  sale  by  sample. 

2d.  Upon  a  promise,  express  or  implied,  that  the  bales  should  not 
be  falsely  packed. 

3d.  Upon  a  promise,  express  or  implied,  that  the  wool  inside  of 
the  bales  should  not  differ  from  the  samples  by  reason  of  false 
packing. 

The  court  below,  trying  the  cause  without  the  intervention  of  a 
jury,  held  that  there  was  no  express  warranty  that  the  bales  not 
examined  should  correspond  to  those  exhibited  at  the  brokers'  store, 
and  that  the  law  under  the  circumstances  could  not  imply  any.  But 
the  court  found  as  matters  of  fact,  that  the  examination  of  the  in- 
terior of  the  bulk  of  bales  of  wool  generally,  put  up  like  these,  is 
not  customary  in  the  trade ;  and  though  possible,  would  be  very 
inconvenient,  attended  with  great  labor  and  delay,  and  for  these 
reasons  was  impracticable ;  and  that  by  the  custom  of  merchants 
and  dealers  in  foreign  wool  in  bales  in  Boston  and  New  York,  the 
principal  markets  of  this  country  where  such  wool  is  sold,  there  is 
an  implied  warranty  of  the  seller  to  the  purchaser  that  the  same 
is  not  falsely  or  deceitfully  packed,  and  the  court  held  as  a  matter 
of  law,  that  the  custom  was  valid  and  binding  on  the  parties  to  this 
contract,  and  gave  judgment  for  the  purchaser. 

This  writ  of  error  was  taken  to  test  the  correctness  of  this  ruling. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

No  principle  of  the  common  law  has  been  better  established,  or 
more  often  affirmed,  both  in  this  country  and  in  England,  than  that 
in  sales  of  personal  property,  in  the  absence  of  express  warranty, | 
where  the  buyer  has  an  opportunity  to  inspect  the  commodity,  and| 
the  seller  is  guilty  of  no  fraud,  and  is  neither  the  manufacturer  nor| 
grower  of  the  article  he  sells,  the  maxim  of  caveat  emptor  applies. 
Such  a  rule,  requiring  the  purchaser  to  take  care  of  his  own  inter- 
ests, has  been  found  best  adapted  to  the  wants  of  trade  in  the  busi- 
ness transactions  of  life.  And  there  is  no  hardship  in  it,  because  if 
the  purchaser  distrusts  his  judgment  he  can  require  of  the  seller 
a  warranty  that  the  quality  or  condition  of  the  goods  he  desires  to 
buy  corresponds  with  the  sample  exhibited.  If  he  is  satisfied  with- 
out a  warranty,  and  can  inspect  and  declines  to  do  it,  he  takes  upon 
himself  the  risk  that  the  article  is  merchantable.  And  he  cannot 
relieve  himself  and  charge  the  seller  on  the  ground  that  the  exam- 
ination will  occupy  time,  and  is  attended  with  labor  and  inconveni- 
ence. If  it  is  practicable,  no  matter  how  inconvenient,  the  rule 
applies. 

One  of  the  main  reasons  why  the  rule  does  not  apply  in  the  case  of 
a  sale  by  sample,  is  because  there  is  no  opportunity  for  a  personal 
examination  of  the  bulk  of  the  commodity  wdiich  the  sample  is  shown 
to  represent.  Of  such  universal  acceptance  is  the  doctrine  of  caveat 
emptor  in  this  country,  that  the  courts  of  all  the  States  in  the  Union 


3G6  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

where  the  common  law  prevails,  with  one  exception  (South  Caro- 
lina), sanction  it. 

Applying  this  acknowledged  rule  of  law  to  this  case,  it  is  easy 
to  settle  the  rights  of  the  parties,  and  to  interpret  the  contract  which 
they  made.  That  the  wool  was  not  sold  by  sample  clearly  appears. 
And  it  is  equally  clear  that  both  sides  understood  that  the  buyer, 
if  he  bought,  was  to  be  his  own  judge  of  the  quality  of  the  article 
he  purchased.  Barnard  expressly  stipulated,  as  a  condition  of  sale, 
that  Kellogg  should  examine  the  wool,  and  he  did  examine  it  for 
himself.  If  Kellogg  intended  to  rely  on  the  samples  as  a  basis  of 
purchase,  why  did  he  go  to  Boston  and  inspect  the  bales  at  all,  after 
notice  that  such  inspection  was  necessary  before  the  sale  could  be 
completed?  His  conduct  is  wholly  inconsistent  with  the  theory  of 
a  sale  by  sample.  If  he  wanted  to  secure  himself  against  possible 
loss,  he  should  either  have  required  a  warranty  or  taken  the  trouble 
of  inspecting  fully  all  the  bales.  Not  doing  this,  he  cannot  turn  round 
and  charge  the  seller  with  the  consequences  of  his  own  negligence. 
Barnard  acted  in  good  faith,  and  did  not  know  or  have  reason  to 
believe  that  the  wool  was  falsely  packed.  The  sale  on  his  part  was 
intended  to  be  upon  the  i;sual  examination  of  the  article,  and  the 
proceeding  by  Kellogg  shows  that  he  so  understood  it,  and  it  is 
hard  to  see  what  ground  of  complaint  even  he  has  against  Barnard. 
It  will  not  do  to  say  that  it  was  inconvenient  to  examine  all  the  bales, 
because  if  inconvenient  it  was  still  practicable,  and  that  is  all,  as 
we  have  seen,  that  the  law  requires. 

The  case  of  Salisbury  v.  Stainer,  reported  in  19  Wend.  (N.  Y.)  159, 
32  Am.  Dec.  437,  is  similar  in  its  facts  to  this  case,  and  the  court 
applied  to  it  the  rule  of  caveat  emptor.  There  bales  of  hemp  were 
sold  which  turned  out  to  be  falsely  packed.  The  purchaser  wished 
to  treat  the  sale  as  a  sale  by  sample ;  but  the  court  said  to  him, 
"You  were  told  to  examine  for  yourself,  and  having  opened  one 
bale,  and  at  liberty  to  open  all,  and  omitting  to  do  it,  you  cannot 
be  permitted  to  allege  that  the  sale  was  a  sale  by  sample,  nor  to 
recover  damages  as  on  an  implied  warranty."  It  is,  therefore,  clear 
by  the  general  principles  of  law,  adopted  in  the  interests  of  trade  and 
commerce,  that  the  seller  in  this  instance  was  not  answerable  over 
for  any  latent  defects  in  the  bales  of  wool. 

But  the  learned  court  below  having  found  that  by  the  custom  of 
dealers  in  wool  in  New  York  and  Boston  there  is  a  warranty  by 
the  seller  implied  from  the  fact  of  sale,  that  the  wool  is  not  falsely 
packed,  and  having  held  Barnard  bound  by  it,  the  inquiry  arises 
whether  such  a  custom  can  be  admitted  to  control  the  general  rules 
of  law  in  relation  to  the  sale  of  personal  property. 

It  is  to  be  regretted  that  the  decisions  of  the  courts,  defining  what 
local  usages  may  or  may  not  do,  have  not  been  uniform.  In  some 
judicial  tribunals  there  has  been  a  disposition  to  narrow  the  limits 


Sec.  3)  IMPLIED   WARRANTY    OF    QUALITY  367 

of  this  species  of  evidence,  in  others  to  extend  them,  and  on  this 
account  mainly  the  conflict  in  decision  arises.  But  if  it  is  hard  to 
reconcile  all  the  cases,  it  may  be  safely  said  they  do  not  differ  so 
much  in  principle,  as  in  the  application  of  the  rules  of  law.  The 
proper  office  of  a  custom  or  usage  in  trade  is  to  ascertain  and  ex- 
plain the  meaning  and  intention  of  the  parties  to  a  contract,  whether 
written  or  in  parol,  which  could  not  be  done  without  the  aid  of  this 
extrinsic  evidence.  It  does  not  go  beyond  this,  and  is  used  as  a 
mode  of  interpretation  on  the  theory  that  the  parties  knew  of  its\ 
existence,  and  contracted  with  reference  to  it.  It  is  often  employed  I 
to  explain  words  or  phrases  in  a  contract  of  doubtful  signification,/ 
or  which  may  be  understood  in  different  senses,  according  to  the 
subject-matter  to  which  they  are  applied.  But  if  it  be  inconsistent 
with  the  contract,  or  expressly  or  by  necessary  implication  contra- 
dicts it,  it  cannot  be  received  in  evidence  to  afifect  it.  See  notes  to 
Wigglesworth  v.  Dallison,  1  Smith's  Leading  Cases,  498;  2  Parsons 
on  Contracts,  §§  9,  535 ;    Taylor  on  Evidence,  943,  and  following. 

Usage,  says  Lord  Lyndhurst,  "may  be  admissible  to  explain  what 
is  doubtful;  it  is  never  admissible  to  contradict  what  is  plain." 
Blackett  v.  Royal  Exchange  Assu.  Co.,  2  Crompton  &  Jervis,  249. 
And  it  is  well  settled  that  usage  cannot  be  allowed  to  subvert  the 
settled  rules  of  law.  See  note  to  1  Smith's  Leading  Cases,  supra. 
Whatever  tends  to  unsettle  the  law,  and  make  it  different  in  the 
different  communities  into  which  the  state  is  divided  leads  to  mis- 
chievous consequences,  embarrasses  trade,  and  is  against  public 
policy.  If,  therefore,  on  a  given  state  of  facts,  the  rights  and  liabil- 
ities of  the  parties  to  a  contract  are  fixed  by  the  general  principles  of 
the  common  law,  they  cannot  be  changed  by  any  local  custom  of  the 
place  where  the  contract  was  made.  In  this  case  the  common  law 
did  not,  on  the  admitted  facts,  imply  a  warranty  of  the  good  quaHty 
of  the  wool,  and  no  custom  in  the  sale  of  this  article  can  be  admit- 
ted to  imply  one.  A  contrary  doctrine,  says  the  court,  in  Thomp- 
son v.  Ashton,  14  Johns.  (N.  Y.)  317,  "would  be  extremely  pernicious 
in  its  consequences,  and  render  vague  and  uncertain  all  the  rules 
of  law  on  the  sales  of  chattels." 

In  Massachusetts,  where  this  contract  was  made,  the  more  recent 
decisions  on  the  subject  are  against  the  validity  of  the  custom  set 
up  in  this  case.  In  Dickinson  v.  Gay,  7  Allen,  29,  83  Am.  Dec.  656, 
which  was  a  sale  of  cases  of  satinets  made  by  samples,  there  were 
in  both  the  samples  and  the  goods  a  latent  defect  not  discoverable 
by  inspection,  nor  until  the  goods  were  printed,  so  that  they  were 
unmerchantable.  It  was  contended  that  by  custom  there  was  in 
such  a  case  a  warranty  implied  from  the  sale  that  the  goods  were 
merchantable.  But  the  court,  after  a  full  review  of  all  the  authorities, 
decided  that  the  custom  that  a  warranty  Avas  implied,  when  by  law 
it  was  not  implied,  was  contrary  to  the  rule  of  the  common  law  on 


368  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

the  subject,  and  therefore  void.  If  anything,  the  case  of  Dodd  v. 
Farlow,  11  Allen,  426,  87  Am.  Dec.  726,  is  more  conclusive  on  the 
point.  There  forty  bales  of  goat  skins  were  sold  by  a  broker,  who 
put  into  the  memorandum  of  sale,  without  authority,  the  words  "to 
be  of  merchantable  quality  and  in  good  order." 

It  was  contended  that  by  custom,  in  all  sales  of  such  skins,  there 
was  an  implied  warranty  that  they  were  of  merchantable  quality,  and, 
therefore,  the  broker  w^as  authorized  to  insert  the  words,  but  the 
court  held  the  custom  itself  invalid.  They  say,  "It  contravenes  the 
principle,  which  has  been  sanctioned  and  adopted  by  this  court,  upon 
full  and  deliberate  consideration,  that  no  usage  will  be  held  legal 
or  binding  on  parties,  which  not  only  relates  to  and  regulates  a 
particular  course  or  mode  of  dealing,  but  which  also  engrafts  on  a 
contract  of  sale  a  stipulation  or  obligation  which  is  inconsistent 
with  the  rule  of  the  common  law  on  the  subject."  It  is  clear,  there- 
fore, that  in  Massachusetts,  where  the  wool  was  sold  and  the  seller 
lived,  the  usage  in  question  would  not  have  been  sanctioned. 

In  New  York  there  are  some  cases  which  would  seem  to  have 
adopted  a  contrary  view,  but  the  earlier  and  later  cases  agree  with 
the  ^Massachusetts  decisions.  The  question  in  Frith  v.  Barker,  2 
Johns.  327,  was,  whether  a  custom  was  valid  that  freight  must  be 
paid  on  goods  lost  by  peril  of  the  sea,  and  Chief  Justice  Kent,  in 
deciding  that  the  custom  was  invalid,  says :  "Though  usage  is  often 
resorted  to  for  explanation  of  commercial  instruments,  it  never  is, 
or  ought  to  be,  received  to  contradict  a  settled  rule  of  commercial 
law."  In  Woodrufif  v.  Merchants'  Bank,  25  Wend.  673,  a  usage  in 
the  city  of  New  York,  that  days  of  grace  were  not  allowed  on  a 
certain  description  of  commercial  paper,  was  held  to  be  illegal.  Nel- 
son, chief  justice,  on  giving  the  opinion  of  that  court,  says:  "The 
effect  of  the  proof  of  usage  in  this  case,  if  sanctioned,  would  be  to 
overturn  the  whole  law  on  the  subject  of  bills  of  exchange  in  the 
city  of  New  York ;"  and  adds,  "if  the  usage  prevails  there,  as  testi- 
fied to,  it  cannot  be  allowed  to  control  the  settled  and  acknowledged 
law  of  the  State  in  respect  to  this  description  of  paper."  And,  in 
Beirne  v.  Dord,  5  N.  Y.  95,  55  Am.  Dec.  321,  the  evidence  of  a  cus- 
tom that  in  the  sale  of  blankets  in  bales,  where  there  was  no  ex- 
press warranty,  the  seller  impliedly  warranted  them  all  equal  to  a 
sample  shown,  was  held  inadmissible,  because  contrary  to  the  set- 
tled rule  of  law  on  the  subject  of  chattels. 

But  the  latest  authority  in  that  State  on  the  subject,  is  the  case 
of  Simmons  v.  Law,  *42  N.  Y.  219.  That  was  an  action  to  recover 
the  value  of  a  quantity  of  gold-dust  shipped  by  Simmons  from  San 
Francisco  to  New  York  on  Law's  hne  of  steamers,  which  was  not 
delivered.  An  attempt  was  made  to  limit  the  liability  of  the  common 
carrier  beyond  the  terms  of  the   contract  in  the  bill   of  lading  by 


Sec.  3)  IMPLIED    WARRANTY    OF    QUALITY  369 

proof  of  the  usage  of  the  trade,  which  was  well  known  to  the  ship- 
per, but  the  evidence  was  rejected.  The  court,  in  commenting  on 
the  question,  say :  "A  clear,  certain,  and  distinct  contract  is  not  sub- 
ject to  modification  by  proof  of  usage.  Such  a  contract  disposes 
of  all  customs  by  its  own  terms,  and  by  its  terms  alone  is  the  con- 
duct of  the  parties  to  be  regulated,  and  their  liability  to  be  deter- 
mined." 

In  Pennsylvania  this  subject  has  been  much  discussed,  and  not 
always  with  the  same  result.  At  an  early  day  the  Supreme  Court 
of  the  State  allowed  evidence  of  usage,  that  in  the  city  of  Philadelphia 
the  seller  of  cotton  warranted  against  latent  defects,  though  there 
were  neither  fraud  on  his  part  or  actual  warranty.  Snowden  v. 
Warder,  3  Rawle,  101.  Chief  Justice  Gibson,  at  the  time,  dissented 
from  the  doctrine,  and  the  same  court,  in  later  cases,  has  disapproved 
of  it  (Coxe  v.  Heisley,  19  Pa.  243;  Wetherill  v.  Neillson,  20  Pa. 
448,  54  Am.  Dec.  741),  and  now  hold  that  a  usage,  to  be  admis- 
sible, "'must  not  conflict  with  the  settled  rules  of  law,  nor  go  to 
defeat  the  essential  terms  of  the  contract." 

,  It  would  unnecessarily  lengthen  this  opinion  to  review  any  further 
the  American  authorities  on  this  subject.  It  is  enough  to  say,  as  a 
general  thing,  that  they  are  in  harmony  with  the  decisions  already 
noticed.  See  the  American  note  to  Wigglesworth  v.  Dallison,  1 
Smith's  Leading  Cases,  where  the  cases  are  collected  and  distinctions 
noticed. 

The  necessity  for  discussing  this  rule  of  evidence  has  often  occurred 
in  the  highest  courts  of  England  on  account  of  the  great  extent  and 
variety  of  local  usages  which  prevail  in  that  country,  but  it  would 
serve  no  useful  purpose  to  review  the  cases.  They  are  collected 
in  the  very  accurate  English  note  to  Wigglesworth  v.  Dallison,  and 
are  not  different  in  principle  from  the  general  current  of  the  Amer- 
ican cases.  If  any  of  the  cases  are  in  apparent  conflict,  it  is  not  on 
account  of  any  difference  in  opinion  as  to  the  rules  of  law  which  are 
applicable. 

These  rules,  says  Chief  Justice  Wilde,  in  Spartali  v.  Benecke,  10 
Common   Bench,  222,  "are  well  settled,  and  the  difficulty  that  has 
arisen  respecting  them,  has  been  in  their  application  to  the  varied 
circumstances  of  the  numerous  cases  in  which  the  discussion  of  them' 
has  been  involved."     But  this  difficulty   does  not   exist  in  applying 
these  rules  to  the  circumstances  of  this  case.     It  is  apparent,  that 
the  usage  in  question  was  inconsistent  with  the  contract  which  the  I 
parties  chose  to  make  for  themselves,  and  contrary  to  the  wise  rule] 
of  law  governing  the  sales  of  personal  property.     It   introduced  a 
new  element  into  their  contract,  and  added  to  it  a  warranty,  which 
the  law  did  not  raise,  nor  the  parties  intend  it  to  contain.     The  par- 
ties negotiated  on  the  basis  of  caveat  emptor,  and  contracted  accord- i 
ingly.     This  they  had  the  right  to  do,  and  by  the  terms  of  the  con-/ 
WooDW.  Sales — 24 


370  OBLIGATION'S    OF    SELLER    AND   BUYER  (Ch.  4 

tract  the  law  placed  on  the  buyer  the  risk  of  the  purchase,  and  re- 
lieved the  seller  from  liability  for  latent  defects.  But  this  usage 
of  trade  steps  in  and  seeks  to  change  the  position  of  the  parties,  and 
to  impose  on  the  seller  a  burden  which  the  law  said,  on  making  his 
contract,  he  should  not  carry.  By  this  means  a  new  contract  is  made 
for  the  parties,  and  their  rights  and  liabilities  under  the  law  essen- 
tially altered.  This,  as  we  have  seen,  cannot  be  done.  If  the  doc- 
trine of  caveat  emptor  can  be  changed  by  a  special  usage  of  trade, 
in  the  manner  proposed  by  the  custom  of  dealers  of  wool  in  Boston, 
it  is  easy  to  see  it  can  be  changed  in  other  particulars,  and  in  this 
way  the  whole  doctrine  frittered  away. 

It  is  proper  to  add,  in  concluding  this  opinion,  that  the  conduct 
of  the  parties  shows  clearly  that  they  did  not  know  of  this  custom, 
and  could  not  therefore  have  dealt  with  reference  to  it. 

Judgment  reversed,  and  the  cause  remanded  with  directions  to 
award  a  venire  de  novo. 

Bradley  and  Strong,  JJ.,  dissented. 


CAMPION  V.  MARSTON. 
(Supreme  Judicial  Court  of  JMaine,  1904.     99  Me.  410,  59  Atl.  548.) 

Emery,  J.^*  In  the  spring  of  1890  Mr.  Campion,  the  plaintiff,  was 
the  owner  of  a  stack  of  ice.  at  Sebago  Lake,  measuring  about  1,400 
tons.  Messrs.  Jones  &  Marston  were  a  firm  of  brokers  and  dealers  in 
ice.  having  their  office  at  Hallowell.  On  May  24,  1900,  presumably 
after  some  prior  conversation  or  correspondence,  Mr.  Marston,  for 
the  firm,  wrote  to  the  plaintiff  as  follows :  "The  ice  you  have  we  can 
give  $3.75  for  F.  O.  B.  for  June,  July  shipment ;  will  take  it  as  soon 
as  we  can.  The  ice  to  be  weighed  on  the  wharf  by  a  sworn  weigher." 
This  offer  was  practically  accepted.  It  was  mutually  understood  that 
the  price  ^3.7S  was  the  price  per  ton,  that  the  place  of  delivery  was 
on  board  ship  at  Portland,  and  that  the  vessels  were  to  be  furnished 
by  Jones  &  Marston,  the  purchasers.  Nothing  appears  to  have  been 
said  or  written  by  either  party  about  the  quality  of  ice,  whether  mer- 
chantable or  not;  nor  does  it  appear  that  Jones  &  Marston  inspected 
the  ice  before  purchasing,  though,  so  far  as  appears,  they  could  have 
done  so. 

Under  this  contract  of  sale  the  plaintiff  delivered  the  ice  on  board 
ship  at  Portland  to  the  amount  of  1,390  tons  by  weight,  and  Jones  & 
IMarston  accepted  it,  and  carried  it  away  to  market.  It  was  weighed 
by  a  sworn  weigher  as  it  went  on  board.  The  plaintiff  now  seeks  to 
recover  the  full  contract  price  of  $3.75  per  ton  for  the  whole  1,390 

1*  Part  of  tlie  opinion  is  omitted. 


Sec.  3)  IMPLIED   WARRANTY    OF    QUALITY  371 

tons.  The  defendant  claims  a  reduction  in  price  on  the  ground  that 
much  of  the  ice  was  not  merchantable  when  delivered.  The  pivotal 
question  of  law  is  whether  this  defense  is  admissible.  Two  subsidiary- 
questions  are  presented  by  the  exceptions,  viz. :  (1)  Whether  the  con- 
tract of  sale  of  the  ice  included  by  implication  an  assurance  or  warran- 
ty, that  the  ice  was  merchantable ;  (2)  whether  the  acceptance  of  the 
fee  at  the  place  of  delivery  on  board  ship  constituted  a  satisfaction  or 
waiver  of  such  warranty. 

Ice  of  a  certain  degree  of  purity  and  hardness  is  a  merchantable 
commodity,  and  as  such  has  a  quotable  market  price.  If  of  less  than 
that  degree  of  purity  and  hardness,  it  has  no  quotable  market  price, 
and  is  not  merchantable — is  not  sure  of  a  sale.  Ice  is  not  graded  like 
grain  or  cotton,  each  grade  having  its  own  market  and  price.  If  not 
merchantable,  its  sale  at  any  price  is  uncertain.  Indeed,  the  term  "ice" 
in  the  trade  means  "merchantable  ice."  Hence,  whenever  a  contract 
of  sale  of  ice  is  made,  it  is  a  contract  of  sale  of  merchantable  ice,  un- 
less otherwise  stipulated.  The  purchaser  becomes  entitled  to  receive 
merchantable  ice.  Good  faith  requires  the  seller  to  furnish  it.  Good 
faith,  bona  fides,  should  be  as  much  of  an  essential  part  of  a  contract 
now  as  it  was  in  the  time  of  Justinian. 

Ice  is  homogeneous.  A  particular  lot  of  ice  has  no  individuality  like 
a  domestic  animal,  a  building,  a  parcel  of  real  estate,  a  factory,  a  ma- 
chine or  plant,  or  any  other  specific  individual  article,  where  the  pur- 
chaser ordinarily  has  a  choice  and  makes  an  examination  and  selec- 
tion. Of  course,  if  the  purchaser  of  ice  does  in  fact  examine  ice  bcr 
fore  purchasing,  and  buys  upon  his  own  judgment,  he  may,  perhapsV 
come  under  the  rule  of  caveat  emptor ;  but  this  purchaser  is  not  showrj 
to  have  done  so.  The  plaintiff  was  offered  and  accepted  what  it  con-| 
ceded  to  have  been  the  price  for  merchantable  ice.  In  law,  as  well  as 
in  morals  and  honor,  he  must  be  held  to  have  promised  that  his  ice  to 
be  delivered  was  of  that  quality. 

Messrs.  Jones  &  Marston  received  the  ice  into  their  vessels  at  Port- 
land as  delivered.  While  being,  taken  from  the  cars,  weighed,  and  put 
on  board  ship  it  was  open  to  view  and  inspection,  and  was  seen  by 
their  agents.  These  circumstances  may  be  evidence,  and  even  strong 
evidence,  that  they  accepted  the  ice  bargained  for,  and  in  full  satisfac- 
tion of  the  contract  of  sale,  including  all  that  good  faith  demanded  of 
the  plaintiff ;  but  the  circumstances  do  not  in  themselves  constitute,  as 
a  matter  of  law,  an  acceptance  in  satisfaction  or  waiver  of  the  plain- 
tiff's promise  that  the  ice  was  merchantable.  Jones  &  Marston  were 
not  obliged  to  decide  the  matter  then.  They  could  lawfully  have  re- 
fused to  receive  the  ice  if  not  merchantable ;  or  they  could  have  taken 
it,  leaving  the  question  of  rebate  for  unmerchantable  ice  to  be  deter- 
mined afterwards.  It  does  not  necessarily  follow  from  their  accept- 
ance of  the  ice  that  they  released  the  plaintiff  from  his  promise  or 
obligation  that  the  ice  was  merchantable.  Whether  they  did  in  fact 
take  the  ice  as  full  satisfaction  of  the  contract  of  sale,  and  thus  release 


372  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

the   plaintiff   from   that   obHgation,  was   a   question   of  fact  for   the 
jury.     *     *     * 

Exceptions  and  motion  overruled. 


RANDALL  v.  NEWSON. 

(Court  of  Appeal,  Queen's  Boiuh  Division.  1S77.     2  Q.  B.  Div.  102.) 

Brett,  J.  A.^^  This  case  was  tried  upon  the  footing  that  it  was  an 
action  brought  against  the  defendant,  a  coach-builder,  to  recover 
damages  in  respect  of  injuries  to  the  plaintiff's  horses  and  carriage, 
by  reason  of  the  defendant  having  supplied  to  the  plaintiff  a  defective 
carriage  pole.  The  jury  found  that  the  pole  was  not  reasonably  fit 
and  proper  for  the  use  of  the  carriage ;  but  that  there  was  no  negli- 
gence on  the  part  of  the  defendant  (including,  of  course,  his  servants 
or  agents)  in  supplying  the  pole.  The  price  of  a  new  pole  was  i3. 
The  damage  done  to  the  horses  and  carriage  was  much  more.  But 
the  only  damages  found  by  the  jury  w^ere  i3.  Upon  these  findings 
the  court  of  queen's  bench,  applying  to  this  contract  the  principle  laid 
down  in  Readhead  v.  Midland  Railway  Co.,  L.  R.  2  Q.  B.  412,  in 
error  L.  R.  4  Q.  B.  379,  gave  judgment  for  the  defendant.  No  dis- 
pute was  made  at  the  trial,  or  in  argument,  as  to  the  nature  of  the 
order  given  and  accepted ;  the  questions  argued  were  whether  the  de- 
fendant was  liable  at  all,  and  what  was  the  extent  of  damages  to 
which  he  might  be  subjected,-  if  he  was  liable  at  all. 

Now  as  to  these  questions,  it  is  to  be  taken,  although  nothing  specific 
seems  to  have  been  said,  that  the  order  given  and  accepted  was  not 
merely  for  a  pole  in  general,  but  for  the  supply  of  a  pole  for  the 
plaintiff's  carriage;  and  that  the  contract  therefore  was  for  the  pur- 
chase and  sale,  or  supply,  of  an  article  for  a  specific  purpose.  In 
other  words,  the  subject-matter  of  the  contract  was  not  merely  a  pole, 
but  a  pole  for  the  purchaser's  carriage;  or,  to  state  the  proposition  in 
an  equivalent  form,  the  thing,  which  would,  if  the  contract  were  form- 
ally drawn  up,  be  described  in  it  as  the  subject-matter  of  it,  would 
not  be  merely  a  pole  generally,  but  a  pole  to  be  purchased  for  a 
specific  purpose,  namely  to  be  used  in  the  plaintift''s  carriage.  The 
question  is,  what,  in  such  a  contract,  is  the  implied  undertaking  of  the 
seller  as  to  the  efficiency  of  the  pole?  Is  it  an  absolute  warranty  that 
the  pole  shall  be  reasonably  fit  for  the  purpose,  or  is  it  only  par- 
tially to  that  effect,  limited  to  defects  which  might  be  discovered  by 
care  and  skill? 

In  order  to  decide  this  question  it  seems  advisable  to  ascertain  the 
primary  or  governing  principle  on  which  the  earlier  cases  were  de- 
ls Part  of  the  opinion  is  omitted.    An  opinion  was  delivered  by  Kelly,  C.  B- 


6eC.  3)  IMPLIED    WARRANTY    OF    QUALITY  373 

cided,  and  to  see  whether  the  principle  on  which  they  were  decided 
ought  to  be  modified  by  the  decision  in  Readhead  v.  Midland  Rail- 
way Co.  The  earliest  case  seems  to  be  Parkinson  v.  Lee,  2  East,  314, 
in  1802.  It  is  sufficient  to  say  of  it  that,  either  it  does  not  determine 
the  extent  of  a  seller's  liability  on  the  contract,  or  it  has  been  over- 
ruled. Neither  can  the  case  of  Fisher  v.  Samuda,  1  Camp.  190,  in 
1808,  be  said  to  decide  anything.  The  first  cases  of  importance  are 
Gardiner  v.  Gray,  4  Camp.  144,  and  Laing  v.  Fidgeon,  6  Taunt.  108,. 
in  1815.  In  Gardiner  v.  Gray  the  contract  was  for  the  purchase  and 
sale  of  "waste  silk."  The  silk  was  imported,  and  the  bulk  had  not 
been  seen  either  by  the  defendant,  the  seller,  or  the  plaintiff,  the  buy- 
er. Lord  Ellenborough  said :  "I  am  of  opinion  that,  under  such 
circumstances"  (i.  e.  a  sale  of  silk  as  waste  silk)  "the  purchaser  has  a 
right  to  expect  a  saleable  article,  answering  the  description  in  the 
contract.  Without  any  particular  warranty,  this  is  an  implied  term  in  , 
every  such  contract."  The  contract  was  for  the  purchase  and  sale  i 
of  a  commodity  described  generally,  not  described  to  be  ordered  or 
supplied  for  a  particular  purpose.  The  description  of  it  was  that  it ' 
was  waste  silk.  From  that  it  is  implied  that  it  is,  or  in  other  words 
it  is  assumed  that  it  might  be,  specifically  described  as  saleable  waste 
silk.  The  decision,  therefore,  is  that  the  commodity  offered  and  de- 
livered must  answer  the  description  of  it  and  be  saleable  waste  silk. 
The  principle  is  that  the  commodity  offered  must  answer  the  descrip- 
tion of  it  in  the  contract.     Laing  v.  Fidgeon  is  to  the  same  effect. 

In  Gray  v.  Cox,  4  B.  &  C.  108,  115,  in  1825,  the  case  was  decided  on 
a  variance;  but  Abbott,  C.  J.,  stated  that  he  was  of  opinion,  "that 
if  a  person  sold  a  commodity  for  a  particular  purpose,  he  must  be 
understood  to  warrant  it  reasonably  fit  and  proper  for  such  purpose." 
The  commodity  ordered  was  copper  for  sheathing  the  ship  Coventry. 
It  was  proved  that  no  defect  could  be  discovered  by  inspection  of  the 
article,  and  it  was  admitted  that  the  defendants  were  ignorant  of  the 
defective  quality  of  the  copper.  It  is  obvious  that  Lord  Tenterden 
did  not  consider  the  seller  relieved  by  reason  of  the  defect  being 
latent. 

This  ruling  of  Lord  Tenterden  was  adopted  in  the  decision  of 
Jones  V.  Bright,  5  Bing.  533,  540,  in  1829.  The  contract  was  for  cop- 
per sheathing  for  a  ship.  The  question  proposed  by  Ludlow,  Serjt., 
in  argument  was,  "whether  the  law  will,  according  to  the  dictum  of 
Lord  Tenterden,  in  Gray  v.  Cox,  4  B.  &  C,  at  p.  115,  lay  upon  the 
seller  or  manufacturer  an  obligation  to  warrant  in  all  cases  that  the 
article  which  he  sells  shall  be  reasonably  fit  and  proper  for  the  pur- 
pose for  which  it  is  intended,  and  render  him  responsible  for  all  the 
consequences  which  may  result,  if  it  shall  be  found  not  to  answer  the 
purpose  for  which  it  was  designed,  and  that,  on  account  of  some  la- 
tent defect  of  which  he  was  ignorant,  and  which  shall  not  be  proved 
to  have  arisen  from  any  want  of  skill  on  his  part,  or  the  use  cf  im- 


374  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

proper  materials,  or  any  accident  against  which  human  prudence 
might  have  been  capable  of  guarding  him."  Here,  therefore,  the 
whole  proposition,  with  and  without  limitations,  was  plainly  laid  be- 
fore the  judges  for  their  consideration. 

The  answer  given  by  Best,  C.  J.,  was :  "I  wish  to  put  the  case  on  a 
broad  principle.  If  a  man  sells  an  article  he  thereby  warrants  that  it 
is  merchantable, — that  it  is  fit  for  some  purpose.  If  he  sells  it  for 
that  particular  purpose,  he  thereby  warrants  it  fit  for  that  purpose. 
*  *  *  Whether  or  not  an  article  has  been  sold  for  a  particular 
purpose  is,  indeed,  a  question  of  fact ;  but  if  sold  for  such  purpose, 
the  sale  is  an  undertaking  that  it  is  fit.  *  *  *  The  law  then  re- 
solves itself  into  this, — that  if  a  man  sells  generally,  he  undertakes 
that  the  article  sold  is  fit  for  some  purpose ;  if  he  sells  it  for  a  particu- 
lar purpose,  he  undertakes  that  it  shall  be  fit  for  that  particular  pur- 
pose." Nothing  can  be  more  clear  than  that  the  rule  is  advisedly 
enunciated  as  a  warranty  without  limitation.  Brown  v,  Edgington,  2 
M.  &  G.  279,  is  to  the  same  effect. 

In  Wieler  v.  Schilizzi,  17  C.  B.  619,  622,  25  L.  J.  (C.  P.)  89,  the 
contract  was  for  "Calcutta  linseed."  Jervis,  C.  J.,  told  the  jury  that 
the  question  for  them  to  consider  was,  "whether  there  was  such  an 
admixture  of  foreign  substances  in  it  as  to  alter  the  distinctive  char- 
acter of  the  article,  and  prevent  it  from  answering  the  description  of 
it  in  the  contract."  Cresswell,  J.,  said,  "They  were  to  say  whether  the 
article  delivered  reasonably  answered  the  descri]:ition  of  Calcutta  lin- 
seed." Crowder,  J.,  said,  "The  jury  in  effect  found  that  the  article 
delivered  did  not  reasonably- answer  the  description  in  the  contract." 
Willes,  J.,  said,  "The  purchaser  had  a  right  to  expect,  not  a  perfect 
article,  but  an  article  which  would  be  saleable  in  the  market  as  Cal- 
cutta linseed.  If  he  got  an  article  so  adulterated  as  not  reasonably  to 
answer  that  description,  he  did  not  get  what  he  bargained  for."  In 
this  case  it  is  to  be  observed  that  all  the  judges  adopted  the  form  of 
stating  the  principle  which  was  used  by  Lord  EHenborough  in  Gardi- 
ner V.  Gray,  4  Camp.  144. 

In  Nichol  v.  Godts,TO  Ex.  191,  23  L.  J.  (Ex.)  314,  the  contract  was 
for  "foreign  refined  rape  oil,  warranted  only  equal  to  samples."  The 
oil  offered  was  equal  to  samples,  but  both  samples  and  oil  were  adul- 
terated. Parke,  B.,  told  the  jury  "that  the  statement  in  the  sold-note 
as  to  the  samples  related  to  the  quality  only  of  the  article,  and  that 
according  to  the  contract  the  defendant  was  entitled  to  have  rape  oil 
delivered  to  him."  Piatt.  B.,  in  banc,  said:  "I  understand  that  the 
oil  to  be  delivered  was  to  be  equal  to  the  samples  in  quality.  But 
the  defendant  did  not  refuse  to  accept  the  oil  tendered  to  him  on  the 
ground  that  it  did  not  equal  the  samples,  but  on  account  of  its  not  be- 
ing foreign  refined  rape  oil  at  all.  And  the  learned  judge  told  the 
jurv  that  if  they  should  think  that  was  so,  the  defendant  was  not 
bound   to    accept   it.     That   direction   was    perfectly   correct.     If    the 


Sec.  3)  IMPLIED  WARRANTY  OF  QUALITY  375 

jury  had  found  that  the  article  which  the  plaintiff  tendered  was  known 
in  the  market  under  the  name  and  description  of  foreign  refined  rape 
oil,  the  plaintiff  would  have  been  entitled  to  succeed ;  but  the  question 
was  put  to  the  jury,  and  they  were  of  opinion  that  it  was  not  known 
as  such."  And  Parke,  B.,  said  "the  evidence  went  to  show  that  the 
oil  offered  did  not  answer  the  description  of  the  article  sold." 

This  form  of  stating  the  rule  was  distinctly  adopted  in  Josling  v. 
Kingsford,  13  C.  B.  (N.  S.)  447,  32  L.  J.  (C.  P.)  94,  by  Erie,  C.  J., 
and  Willes,  J.  Erie,  C.  J.,  told  the  jury  "that  the  defendant  could 
only  perform  his  part  of  the  contract  by  delivering  that  which  in  com- 
mercial language  might  properly  be  said  to  come  under  the  denomina- 
tion of  oxalic  acid ;  and  that  if  they  should  be  of  opinion  that  the  arti- 
cle delivered  by  the  defendant  as  oxalic  acid  did  not  properly  fulfil 
that  description  they  should  find  for  the  plaintiff"." 

I  have  cited  these  cases,  and  the  principles  laid  down  in  them,  in 
order  clearly  to  ascertain  what  is  the  primary  or  ultimate  rule  from 
which  the  rules  which  have  been  applied  to  contracts  of  purchase  and 
sale  of  somewhat  different  kinds  have  been  deduced.  Those  different 
rules,  as  applied  to  such  different  contracts,  are  carefully  enumerated 
and  recognized  in  Jones  v.  Just,  L.  R.  3  Q.  B.  197.  In  some  contracts 
the  undertaking  of  the  seller  is  said  to  be  only  that  the  article  shall  be 
merchantable ;  in  others,  that  it  shall  be  reasonably  fit  for  the  purpose 
to  which  it  is  to  be  applied.  In  all,  it  seems  to  us,  it  is  either  assumed\ 
or  expressly  stated,  that  the  fundamental  undertaking  is,  that  the  ar-j 
tide  offered  or  delivered  shall  answer  the  description  of  it  contained  iry 
the  contract.  That  rule  comprises  all  the  others ;  they  are  adapta- 
tions of  it  to  particular  kinds  of  contracts  of  purchase  and  sale.  You 
must,  therefore,  first  determine  from  the  words  used,  or  the  circum- 
stances, what,  in  or  according  to  the  contract,  is  the  real  mercantile 
or  business  description  of  the  thing  which  is  the  subject-matter  of  the 
bargain  of  purchase  or  sale,  or,  in  other  words,  the  contract.  If  that 
subject-matter  be  merely  the  commercial  article  or  commodity,  the 
undertaking  is,  that  the  thing  off'ered  or  delivered  shall  answer  that 
description,  that  is  to  say,  shall  be  that  article  or  commodity,  saleable 
or  merchantable.  If  the  subject-matter  be  an  article  or  commodity 
to  be  used  for  a  particular  purpose,  the  thing  offered  or  delivered  must 
answer  that  description,  that  is  to  say,  it  must  be  that  article  or  com- 
modity, and  reasonably  fit  for  the  particular  purpose. 

The  governing  principle,  therefore,  is  that  the  thing  offered  and  de-\ 
livered  under  a  contract  of  purchase  and  sale  must  answer  the  descrip-l 
tion  of  it  which  is  contained  in  words  in  the  contract,  or  which  would  \ 
be  so  contained  if  the  contract  were  accurately  drawn  out.  And  if 
that  be  the  governing  principle,  there  is  no  place  in  it  for  the  suggested 
limitation.  If  the  article  or  commodity  off'ered  or  delivered  does  not 
in  fact  answer  the  description  of  it  in  the  contract,  it  does  not  do  so 
more  or  less  because  the  defect  in  it  is  patent,  or  latent,  or  discover- 


376  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

able.  And  accordingly  there  is  no  suggestion  of  any  such  limitation 
in  any  of  the  judgments  in  cases  relating  to  contracts  of  purchase  and 
sale.  Unless,  therefore,  there  is  some  binding  authority  to  the  con- 
trary, we  ought  not  now  to  introduce  by  implication  a  limitation  into 
contracts  of  purchase  and  sale  which  has  never  been  introduced  be- 
fore.    *     *     * 

Judgment  reversed.^' 


WHITE  V.  OAKES  et  al. 
(Supreme  Judicial  Court  of  Maine,  1S96.     SS  Me.  367,  34  Atl.  175.) 

Haskell,  J.  The  defendants,  being  dealers  in  furniture,  and  not 
manufacturers,  sold  a  folding  bed  to  the  plaintiff,  without  express 
warranty  of  any  kind.  The  bed  proved  dangerous  to  the  persons  using 
it,  not  from  defective  parts,  but  from  faulty  design.  It  proved  to  be 
a  trap,  suited  to  crush  its  occupants  by  shutting  up  like  a  jackknife 
when  slept  upon.  The  weight  of  its  occupants,  if  sufficient  to  over- 
come the  gravity  of  the  upright  headpiece,  would  tip  that  forward, 
and  the  bed  collapse.  This  bed  did  so,  injuring  a  man  sleeping  in  it 
so  that  he  became  partially  paralyzed.  The  defendants  had  no  knowl- 
/edge  of  this  danger.  If,  therefore,  the  plaintiff'  may  recover  in  this 
case,  it  must  be  from  an  implied  warranty  against  the  dangers  of  its 
contrivance. 

The  mechanism  of  this  bed  could  be  observed  by  the  purchaser  as 
well  as  by  the  vendor.  Neither,  unless  skilled  in  mechanics,  would  be 
likely  to  discover  the  dangers  of  it,  unaided  by  any  object  lesson.  The 
hinge  or  flexible  joint  upon  which  the  bed  hung  was  a  contrivance  of 
folding  iron  straps  that  really  brought  the  point  of  support  much  fur- 
ther front  at  the  head  than  they  seemed  to,  thereby  overcoming  the 
gravity  of  the  headpiece,  and  tending  to  pitch  it  forward.  The  bed, 
when  sufficiently  loaded,  would  bring  the  center  of  gravity  of  the  up- 
right headpiece  so  far  outside  its  base,  or  so  nearly  so,  that  any  un- 
usual disturbance  might  work  that  result,  especially  when  the  casters 
were  turned  under. 

I  "In  the  sale  of  chattels  by  the  manufacturer  from  specific  uses,  an 
implied  warranty  arises  that  the  article  is  fit  for  the  use  intended." 

16  Compare  Hoe  v.  Sanborn,  21  N.  Y.  552,  78  Am.  Dec.  1G3  (ISGO).  The 
action  was  upon  a  promissory  note,  and  it  appeared  tliat  the  note  was  given 
for  the  purchase  price  of  certain  saws  manufactured  by  the  plaintiffs  and 
sold  to  the  defendant,  one  of  which,  through  defective  material  or  want  of 
being  properly  tempered,  was  so  soft  as  to  be  entirely  useless.  Seldou,  J., 
said:  "  *  *  *  In  the  present  case,  a  portion  of  the  alleged  defect  in  the 
saw  would  seem  to  have  arisen  from  the  unsuitableness  of  the  material  of 
which  it  was  made.  The  rule  on  the  subject,  I  hold  to  be  this:  The  vendor 
is  liable,  in  such  cases,  for  any  latent  defect  not  disclosed  to  the  purchaser, 
arisins;  from  the  manner  in  which  the  article  was  manufactured ;  and  if  he,, 
knowuigiy,  uses  improper  materials,  he  is  liable  for  that  also;  but  not  for 
any  latent  defect  in  (he  material  which  he  is  not  shown  and  cannot  be  pre- 
sumed to  have  known.     *     •     ♦ " 


Sec.  3)  IMPLIED   WARRANTY    OF    QUALITY  377 

Downing  v.  Dearborn,  77  Me.  457,  1  Atl.  407.  In  the  sale  of  chattels 
without  express  warranty  and  without  fraud,  caveat  emptor  applies, 
and  there  is  no  implied  warranty.  Briggs  v.  Hunton,  87  Ale.  145,  32 
Atl.  794,  47  Am.  St.  Rep.  318;  Kingsbury  v.  Taylor,  29  Me.  508,  50 
Am.  Dec.  607;  Winsor  v.  Lombard,  18  Pick.  (Mass.)  57;  Mixer  v. 
Coburn,  11  Mete.  (Mass.)  559,  45  Am.  Dec.  230;  French  v.  Vining, 
102  Mass.  132,  3  Am.  Rep.  440;  Howard  v.  Emerson,  110  Mass.  320, 
14  Am.  Rep.  608.  If  the  sale  be  by  description,  without  opportunity 
for  inspection,  the  description  must  be  met. 

The  sale  of  this  bed  was  with  full  opportunity  of  inspection.  It  was 
shown  to  the  purchaser,  and  the  terms  of  sale  were  put  in  writing. 
She  therefore  took  no  implied  warranty,  or  an  equivalent  right,  unless 
facts  were  concealed  from  her  that  made  the  transaction  fraudulent. 
No  concealment  is  shown.  It  does  not  appear  that  the  defendants 
knew  of  the  dangerous  contrivance  that  operated  the  bed.  They  deny 
such  knowledge.  But  it  is  said  that,  after  the  sale,  the  bed  broke 
down ;  that  the  defendants  were  called  upon  to  take  it  back ;  and  that 
they  said  they  would  fix  it,  and  warrant  it  all  right.  One  of  the  iron 
straps  had  broken,  and  the  defendants  put  on  a  new  one.  The  defend- 
ants were  neither  bound  to  repair  the  bed  nor  take  it  back.  They 
gratuitously  repaired  it,  and  any  warranty  they  might  have  then  made 
would  have  been  without  consideration,  and  not  binding. 

But  the  conversation  testified  to  does  not  amount  to  a  warranty  of 
its  safety  in  use.  At  most,  it  can  only  be  considered  an  assurance  that 
its  mechanism  had  been  made  sound.  It  does  not  appear  that  they 
were  then  informed  of  any  inherent  danger  in  its  use  from  faulty  con- 
trivance. Had  they  been  aware  of  this,  and  concealed  the  danger,  and 
allowed  the  plaintiff  to  further  use  the  bed  when  they  knew  of  its 
dangerous  character,  other  considerations  would  arise,  not  material 
here.  There  is  no  phase  of  the  case  as  presented  that  can  cast  any  lia- 
bility upon'  the  defendants. 

The  plaintiff  asks  to  amend  by  inserting  a  count  for  the  purchase 
money  paid.  The  amendment  could  do  the  plaintiff  no  good.  The 
bed  was  bargained  on  installments.  The  plaintiff  says  that,  after  the 
shocking  disaster  with  the  bed,  the  defendants  demanded  payment  of 
money  overdue,  which  being  refused,  they  took  the  bed.  The  defend- 
ants deny  the  demand,  but  say  that  they  retook  the  bed  by  plaintiff's 
consent.  In  either  case,  under  the  terms  of  sale,  they  might  do  so. 
They  have  both  part  payment  and  the  bed.  That  was  their  legal  right, 
and  a  more  generous  course  cannot  be  demanded  by  law. 

Judgment  for  defendants.^^ 

17  Compare  Preist  v.  Last  [1903]  2  K.  B.  148. 


378  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll,  4: 

DAVIS  CALYX   DRILL  CO.  v.  MALLORY  et  al. 

(Circuit  Court  of  Appeals,  Eighth  Circuit.  190.5.     137  Fed.  332,  09  0.  C.  A.  662, 

09  L.  R,  A.  973.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  Iowa. 

On  June  25,  1902,  the  Davis  Calyx  Drill  Company,  a  corporation, 
made  a  written  contract  with  S.  H.  Mallory  to  furnish  him  free  on 
board  the  cars  at  Tarrytown,  in  the  state  of  New  York,  one  class 
F3  drill,  which  is  described  in  its  catalogue,  and  certain  specific  ma- 
chinery, tools,  and  articles,  for  which  INlallory  promised  to  pay  $2,- 
459.  Mallory  has  since  died,  and  the  defendants  are  the  executrices 
of  his  will.  The  Calyx  Company  made  and  delivered  the  drill,  the 
machinery,  and  the  articles  according  to  the  contract,  and  this  is  an 
action  to  recover  their  purchase  price.  Two  defenses  were  inter- 
posed— fraudulent  misrepresentation  and  the  breach  of  an  implied 
warranty  by  the  plaintiff.  The  court  withdrew  the  former  defense, 
and  submitted  the  latter  to  the  jury.  There  was  evidence  which  had 
a  tendency  to  establish  these  facts : 

The  plaintiff  was  a  corporation  engaged  in  the  manufacture  of 
drills  and  other  machinery  at  Tarrytown,  in  the  state  of  New  York. 
Mallory  was  engaged  in  prospecting  for  coal  in  lands  in  Lucas  county, 
in  the  state  of  Iowa,  and  William  Haven  was  his  agent.  Haven  had 
used  a  diamond  drill  for  this  purpose  prior  to  June.  1902,  but  he  ob- 
jected to  it  because  it  would  frequently  fail  to  produce  any  core,  for 
the  reason  that  the  coal  was  soft,  and  the  diameter  of  the  core  was 
only  one  inch.  He  was  desirous  of  obtaining  a  drill  which  would 
produce  a  larger  core.  He  heard  of  the  Davis  Calyx  drill,  procured 
one  of  the  plaintiff's  catalogues,  went  to  Tarrytown,  and  saw  one  of 
the  plaintiff's  drills  in  operation  with  a  shot  bit ;  but  he  could  not 
form  any  opinion  upon  the  question  whether  or  not  it  was  fit  to  work 
in  the  strata  in  earth  in  Lucas  county,  in  the  state  of  Iowa.  The  drill 
was  provided  with  a  cutter  and  a  shot  bit,  and  these  were  exchanged 
in  the  operation  to  accommodate  the  drill  to  the  hardness  of  the  ma- 
terial through  which  it  was  to  pass.  Haven  met  the  secretary  and 
the  general  manager  of  the  plaintiff.  He  described  to  them  the  strata 
through  which  a  drill  must  pass  in  boring  holes  upon  the  land  of  Mr. 
Mallory,  and  explained  to  them  that  he  desired  to  get  a  machine 
which  would  produce  a  larger  core  than  a  diamond  drill,  and  would 
operate  as  economically  and  rapidly.  They  told  him  that  their  ma- 
chine was  just  the  drill  he  wanted.  They  showed  him  pieces  of  stone 
through  wdiich  it  had  passed,  and  stated  to  him  that  it  would  sink  25 
or  30  feet  per  day ;  that  it  would  operate  as  economically  and  as 
rapidly  as  a  diamond  drill,  and  would  get  a  larger  core.  Thereupon 
Haven  made  the  contract  in  suit  on  behalf  of  his  principal,  >\Iallory, 
in   reliance  upon  these  representations,  and   upon  the  judgment   of 


Sec.  3)  IMPLIED    WARRANTY    OF    QUALITY  379 

the  officers  of  the  plahitiff,  expressed  in  this  way.  The  plaintiff 
furnished  the  drill  and  all  the  other  specific  machinery,  tools,  and 
articles  described  in  the  contract,  and  furnished  an  expert  to  set  up 
and  operate  the  drill.  But  the  machine  would  not  work  satisfactorily. 
It  would  sink  only  8  or  10  feet  per  day  on  the  average,  while  a 
diamond  drill  would  bore  into  the  same  ground  at  the  rate  of  25  feet 
per  day. 

The  plaintiff  claimed  that  these  facts  evidenced  an  implied  war- 
ranty that  the  drill  would  be  fit  and  suitable  to  bore  holes  through 
the  strata  in  Lucas  county,  Iowa,  underneath  his  land,  as  rapidly  and 
economically  as  a  diamond  drill.  All  the  testimony  relative  to  this 
alleged  warranty  was  received  over  the  objections  of  the  plaintiff, 
and  was  contradicted  by  testimony  which  it  produced.  The  court 
instructed  the  jury,  in  effect,  that  if  Haven  correctly  described  to  the 
secretary  and  general  manager  of  the  plaintiff  the  strata  through 
which  the  drill  was  to  be  sunk  under  the  land  of  Mallory,  and  if  the 
secretary  and  general  manager  knew  where  the  drill  was  to  be  used 
and  stated  that  it  would  do  as  much  work  there,  and  do  it  as  econom- 
ically, as  a  diamond  drill,  then  the  plaintiff  had  made  an  implied 
warranty  that  the  drill  would  work  in  this  way,  and  that,  if  it  did 
not  do  so,  the  defendants  had  a  right  to  rescind  the  contract,  to  re- 
turn the  drill,  and  to  recover  the  expenses  which  they  or  their  de- 
cedent had  incurred  in  the  attempt  to  operate  it.  The  plaintiff  ex- 
cepted to  this  portion  of  the  charge,  and  to  the  introduction  of  the 
evidence  relative  to  the  alleged  warranty,  and  there  was  a  verdict  for 
the  defendants. 

Sanborn,  Circuit  Judge,  after  stating  the  case  as  above,  deliv- 
ered the  opinion  of  the  court. 

An  implied  warranty  that  an  article  will  be  fit  for  a  particular  pur- 
pose may  be  inferred  from  a  contract  to  make  or  supply  it  to  ac- 
complish that  purpose,  because  the  accomplishment  of  the  purpose 
is  the  essence  of  the  undertaking.  But  no  such  warranty  arises  out 
of  a  contract  to  make  or  supply  a  specific,  described,  or  definite  article, 
although  the  manufacturer  or  dealer  knows  that  the  vendee  buys  it 
to  accomplish  a  specific  purpose,  because  the  essence  of  this  contract 
is  the  furnishing  of  the  specific  article,  and  not  the  accomplishment 
of  the  purpose.  In  other  words,  a  warranty  that  a  machine,  tool,  or 
article  sold  is  fit  and  suitable  to  accomplish  a  particular  purpose  or 
to  do  a  specific  work  may  be  implied  when  the  manufacture-r  or  dealer 
knows  the  purpose  or  work  to  be  effected,  and  the  purchase  of  the 
machine,  tool,  or  article  is  in  reality  an  employment  of  the  vendor  to 
do  the  work  by  making  or  furnishing  a  machine,  tool,  or  article  to 
effect  it.  Kellogg  Bridge  Co.  v.  Hamilton,  110  U.  S.  lOS,  116,  3  Sup. 
Ct.  537,  28  L.  Ed.  86;  Breen  v.  Moran,  51  Minn.  525,  53  N.  W.  755; 
Leopold  V.  Van  Kirk,  27  Wis.  152,  156;  Brenton  v.  Davis,  8  Blackf. 
(Ind.)  318,  44  Am.  Dec.  769;   Omaha  Coal,  etc.,  Co.  v.  Fay,  37  Neb. 


'\ 


380  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

68,  75,  55  X.  W.  211 ;  Lee  v.  Sickles  Saddlery  Co.,  38  ^lo.  App.  201, 
205;  Rodgers  &  Co.  v.  Xiles  &  Co.,  11  Ohio  St.  53,  57,  7S  Am. 
Dec.  290;   White  v.  Adams,  77  Iowa,  295,  297,  42  N.  W.  199. 

But  no  impHed  warranty  tliat  a  machine,  tool  or  article  is  suitable 
to  accomplish  a  particular  purpose  or  to  do  a  specific  work  arises 
where  the  vendor  orders  of  the  manufacturer,  or  purchases  of  the 
dealer,  a  specific,  described,  or  definite  machine,  tool,  or  article,  al- 
though the  vendor  knows  the  purpose  or  work  which  the  purchaser 
intends  to  accomplish  with  it  and  assures  him  that  it  will  effect  it. 
Such  an  assurance  is  but  the  expression  of  an  opinion,  when  it  is 
followed  by  a  written  contract,  complete  in  itself,  which  is  silent 
upon  the  subject.  The  extent  of  the  implied  warranty  in  such  a  case 
f  is  that  the  machine,  tool,  or  article  shall  correspond  with  the  descrip- 
1  tion  or  exemplar,  and  that  it  shall  be  suitable  to  perform  the  ordinary 
'work  which  the  described  machine  is  made  to  do.  Seitz  v.  Brewers' 
Refrigerating  Co.,  141  U.  S.  510,  518-519,  12  Sup.  Ct.  46.  35  L.  Ed. 
837;  Keates  v.  Cadogan,  2  E.  L.  &  E.  320,  10  C.  B.  591;  Grand 
Ave.  Hotel  Co.  v.  Wharton,  24  C.  C.  A.  441,  443,  79  Fed.  43,  45; 
Morris  v.  Bradley  Fertilizer  Co.,  64  Fed.  55,  56,  12  C.  C.  A.  34,  35 ; 
Leake  on  Contracts  (4th  Ed.)  261,  262;  1  Parsons  on  Contracts,  586, 
587;  Union  Selling  Co.  v.  Jones,  128  Fed.  672,  675,  677,  63  C.  C. 
A.  224,  227,  229 ;  IMcCray  Refrigerating,  etc.,  Co.  v.  Woods,  99  Mich. 
269,  58  N.  W.  320,  321,  41  Am.  St.  Rep.  599;  Cosgrove  v.  Bennett, 
32  Minn.  371,  20  N.  W.  360;  Goulds  v.  Brophy,  42  Minn.  109,  43 
N.  W.  834,  6  L.  R.  A.  392;  Wisconsin  Red  Pressed  Brick  Co.  v. 
Hood,  54  Minn.  545,  56  N:  W.  165;  Fairbanks,  Morse  &  Co.  v. 
Baskett,  98  Mo.  App.  53,  71  S.  W.  1113;  Wheaton  Roller  Mill  Co. 
V.  John  T.  Noye  Mfg.  Co.,  66  Minn.  156,  68  N.  W.  854,  855;  Boiler 
Co.  V.  Duncan,  87  Wis.  120,  58  N.  W.  232,  41  Am.  St.  Rep.  23 ;  Case 
Plow  Works  V.  Niles,  Scott  &  Co.,  90  Wis.  590,  63  N.  W.  1013; 
Deming  v.  Foster,  42  N.  H.  165,  175 ;  Morse  v.  Union  Stockvard  Co., 
21  Or.  289,  28  Pac.  2,  3,  14  L.  R.  A.  157;  Dushane  v.  Benedict,  120 
U.  S.  630,  647,  7  Sup.  Ct.  696,  30  L.  Ed.  810;  Carleton  v.  Jenks,  80 
Fed.  937,  26  C.  C.  A-.  265 ;  Checkrower  Co.  v.  Bradley  &  Co.,  105 
Iowa,  537,  546,  75  N.  W.  369;  Latham  v.  Shipley,  86  Iowa,  543,  53 
N.  W.  342;  Blackmore  v.  Fairbanks,  Morse  &  Co.,  79  Iowa,  289, 
44  N.  W.  548;  Parsons  Band-Cutter,  etc.,  Co.  v.  Mallinger,  122 
Iowa,  703,  98  N.  W.  580. 

If  the  purchaser,  Mallory,  or  his  agent.  Haven,  had  described  the 
strata  through  which  he  desired  to  drive  the  drill,  and  had  ordered 
the  Calyx  Company  to  make  or  to  select  and  furnish  to  him  a  drill 
that  would  bore  the  desired  holes  through  these  strata  as  rapidly  and 
economically  as  a  diamond  drill,  for  an  agreed  price,  and  the  plaintiff 
i  had  accepted  the  order,  an  implied  warranty  would  have  arisen  that 
I  the  drill  to  be  furnished  under  that  contract  would  do  the  work  as 
speedily  and  cheaply  as  a  diamond  drill.     But  an  accepted  order  to 


Sec.  3)  IMPLIED  WARRANTY  OF  QUALITY  381 

make  and  deliver  a  specific,  described  drill,  which  the  vendor  is  en- 
gaged in  making,  has  no  such  effect,  although  the  manufacturer 
knows  the  use  for  whic*h  the  vendee  desires  to  obtain  it.  The  rea- 
son for  this  rule  is  conclusive  and  unanswerable.  When  a  manu- 
facturer or  dealer  agrees  to  make  or  furnish  an  article  that  will  ac- 
complish a  particular  purpose,  the  accompHshment  of  the  purpose 
is  the  substance  of  his  undertaking,  and  he  is  free  to  make  or  to  sup- 
ply any  article  that  will  do  the  work  required.  If  he  furnishes  an 
article  that  will  accomplish  this  purpose,  he  performs  his  contract, 
although  the  article  he  supplies  may  differ  widely  from  that  con- 
templated by  the  purchaser  when  he  made  the  agreement  to  buy.  On 
the  other  hand,  when  the  manufacturer  or  dealer  contracts  to  make 
or  to  deliver  a  specific  and  definitely  described  article,  to  enable  the 
vendor  to  accomplish  a  known  purpose,  the  essential  part  of  his  ob- 
ligation is  the  delivery  of  the  identical  article  described  in  the  con- 
tract ;  and  the  delivery  of  a  different  article,  although  it  may  better 
accomplish  the  desired  result,  is  not  a  performance  of  his  agreement, 
and  does  not  entitled  him  to  recover  the  purchase  price.  The  furnish- 
ing of  the  article  described,  and  that  alone,  whether  that  article  is 
fit  for  the  known  purpose  to  which  the  vendee  intends  to  apply  it  or 
not,  constitutes  a  compliance  with  the  contract  by  the  vendor,  and 
entitles  him  to  secure  its  fruits. 

The  familiar  illustration  of  this  distinction  by  Maule,  J.,  in  Keates 
V.  Cadogan,  2  Eng.  Law  &  Eq.  Rep.  320,  10  C.  B.  591,  is  still  the  most 
felicitous:  "If  a  man  says  to  another,  'Sell  me  a  horse  fit  to  carry 
me,'  and  the  other  sells  a  horse  which  he  knows  to  be  unfit  to  ride, 
he  may  be  liable  for  the  consequences ;  but  if  a  man  says,  'Sell  me 
that  gray  horse  to  ride,'  and  the  other  sells  it,  knowing  that  the  for- 
mer will  not  be  able  to  ride  it,  that  would  not  make  him  liable." 

In  Kellogg  Bridge  Co.  v.  Hamihon,  110  U.  S.  108,  116,  3  Sup. 
Ct.  537,  28  L.  Ed.  86,  the  bridge  company  had  erected  a  portion  of 
the  falsework  requisite  for  the  construction  of  a  bridge  across  the 
Maumee  river.  Hamilton  made  a  contract  with  the  company  to  pur- 
chase the  falsework,  the  foundation  of  which  was  concealed  by  the 
river,  and  to  complete  the  bridge.  While  he  was  engaged  in  the  per- 
formance of  this  contract,  the  falsework  gave  way,  by  reason  of  de- 
fects in  its  construction,  and  precipitated  the  iron  upon  it  into  the 
river.  The  Supreme  Court  held  that  the  bridge  company  impliedly 
warranted  that  the  work  which  it  sold  to  Hamilton  was  suitable  to 
construct  the  bridge  upon  because  it  built  this  falsework,  and  had 
sold  it  to  Hamilton  to  accomplish  that  specific  purpose. ^^ 

18  In  this  case  Mr.  Justice  Harlan  said:  "According  to  tlie  principles  of  de- 
cided cases,  and  upon  clear  grounds  of  justice,  the  fundamental  inquiry  must 
always  be  whether,  under  the  circumstances  of  the  particular  case,  the  buyer 
had  the  right  to  rely  and  necessarily  relied  on  the  judgment  of  the  seller 
and  not  upon  his  own.  In  ordinary  sales  the  buyer  has  an  opportunity  of 
inspecting  the  article  sold ;  and  the  seller  not  being  the  maker,  and  there- 
fore, having  no  special  or  technical  knowledge  of  the  mode  in  which  it  was 


382  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  -4 

But  in  Seitz  v.  Brewers'  Refrigerating  Co.,  141  U.  S.  510,  512, 
519,  12  Sup.  Ct.  46,  35  L.  Ed.  S37,  the  refrigerating  company  had 
been  informed  before  it  made  its  agreement  that  Seitz  was  cooUng 
his  brewery  with  ice,  that  he  wanted  to  dispense  with  the  use  of 
ice,  that  no  machine  would  be  of  any  vakie  to  him  unless  it  would 
enable  him  to  accomplish  this  result,  and  that  such  a  machine  must 
continuously  cool  150,000  cubic  feet  of  air  to  a  temperature  of  40° 
Fahrenheit.  Thereupon  the  refrigerating  company  assured  Seitz  that 
its  machine  would  accomplish  this  result,  and,  in  reliance  upon  this 
statement,  he  entered  into  a  written  contract  with  the  company  to 
the  efi'ect  that  the  latter  should  supply  and  put  in  operation  in  his 
brewery  a  No.  2  size  refrigerating  machine,  as  constructed  by  it, 
for  the  sum  of  $9,450.  The  company  made  and  put  such  a  machine 
in  his  brewery,  but  it  did  not  work  satisfactorily,  and  it  was  incapable 
of  cooling  150,000  cubic  feet  of  air  to  40°  Fahrenheit.  The  Supreme 
Court  held  that  this  case  fell  under  the  rule  that  "where  a  known, 
described,  and  definite  article  is  ordered  of  a  manufacturer,  although 
it  is  stated  by  the  purchaser  to  be  required  for  a  particular  purpose, 
still,  if  the  known,  described,  and  definite  thing  be  actually  supplied, 
there  is  no  warranty  that  it  shall  answer  the  particular  purpose  in- 
tended by  the  buyer,"  and  that  there  was  neither  an  expressed  nor 
an  implied  warranty  that  the  ice  machine  would  do  the  work  for 
which  the  manufacturer  knew  that  it  was  purchased,  or  that  it  would 
cool  150,000  cubic  feet  of  atmosphere  to  40°  Fahrenheit  or  to  any 
other  temperature. 

This  decision  indicates  the  unavoidable  conclusion  in  the  case  at 
bar.  It  also  answers  the  contention  of  counsel  that  this  case  is  not 
governed  by  the  rule  that  there  is  no  implied  warranty  of  fitness 
where  a  known,  definite,  and  descriljed  thing  is  purchased,  because 
Mallory  and  Haven  were  not  familiar  with,  and  had  had  no  ex- 
made,  the  parties  stand  upou  grounds  of  substantial  equality.  If  tliere  be. 
in  fact,  in  the  particular  case,  any  inequality,  it  is  such  that  the  law  cannot 
or  ought  not  to  attempt  to  provide  against;  consequently,  the  buyer  in  such 
cases — the  seller  giving  no  express  warranty  and  making  no  representations 
tending  to  mislead — is  holden  to  have  purchased  entirely  on  his  own  judg- 
ment. But  when  the  .seller  is  the  maker  or  manufacturer  of  the  thing  sold, 
the  fair  presumption  is  that  he  understood  the  process  of  its  manufacture, 
and  was  cognizant  of  any  latent  defect  caused  by  such  process  and  against 
which  reasonable  diligence  might  have  guarded.  This  presumption  is  justi- 
fied, in  part,  by  the  fact  that  the  manufacturer  or  maker  by  his  occupation 
holds  himself  out  as  competent  to  make  articles  reasonably  adapted  to  the 
I)urposes  for  which  such  or  similar  articles  are  designed.  When,  therefore, 
the  buyer  has  no  opportunity  to  inspect  the  article,  or  when,  from  the  sit- 
uation, inspection  is  impracticable  or  useless,  it  is  unreasonable  to  suppo.se 
that  he  bought  on  his  own  judgment,  or  that  he  did  not  rely  on  the  judgment 
of  the  seller  as  to  latent  defects  of  which  the  latter,  if  he  used  due  care, 
must  have  been  informed  during  the  process  of  manufacture.  If  the  buyer 
relied,  and  under  the  cii'cumstances  had  reason  to  rely,  on  the  judgment  of 
the  seller,  who  was  the  manufacturer  or  maker  of  the  article,  the  law  implies 
a  warranty  that  it  is  reasonably  fit  for  the  use  for  which  it  was  designed 
the  seller  at  the  time  being  informed  of  the  purpose  to  devote  it  to  that  use." 


Sec.  3)  IMPLIED   WARRANTY    OF    QUALITY  383 

perience  in  the  operation  of,  the  class  F3  drill  which  they  purchased.    , 
It  is  not  the  familiarity  of  the  purchaser  with  the  character  and  workj/ 
of  the  machine  ordered,  but  the  identity  of  the  thing  described  in  thej/ 
contract,  which  brings  the  latter  within  the  rule.     Seitz  was  probably 
ignorant   of  the  character  and  of  the   operation   of  the   No.   2   size 
refrigerating  machine  which  he  bought,  and  he  relied  upon  the   as- 
surance of  the  vendor  that  it  would  cool  his  brewery  as  he  desired. 
But  the  machine  v/hich  he  ordered  was  identified  by  the  description 
in  his  contract,  and  that  description  made  it  a  known,  described,  and 
definite  thing.     So  in  the  case  at  bar  the  description  in  the  accepted 
order  which  Haven  made  of  the  class  F3  drill  perfectly  identified  it 
— made  it  a  known,  described,  and  definite  thing,  within  the  mean- 
ing of  this  rule,  and  brought  the  contract  clearlv  under  its  operation. 

In  Grand  Avenue  Hotel  Co.  v.  Wharton,  24  C.  C.  A.  441,  443, 
79  Fed.  43,  45,  the  vendee  ordered  two  boilers  for  use  in  its  hotel. 
The  vendor  knew  the  use  to  which  the  vendee  intended  to  put  the 
articles,  and  knew  that  it  must  necessarily  use  the  muddy  water  of 
the  Alissouri  river  in  order  to  operate  them.  The  boilers  were  fur- 
nished, but  they  would  not  operate  with  the  water  of  the  Missouri 
river.  This  court  held  that  there  was  no  implied  warranty  that  they 
would  do  so,  and  sustained  the  judgment  for  their  purchase  price. 

In  Boiler  Co.  v.  Duncan,  87  Wis.  120,  58  N.  W.  232,  234,  41  Am. 
St.  Rep.  33,  tl>e  purchaser  informed  the  manufacturer  before  he 
made  his  order  that  he  required  a  boiler  that  would  produce  130 
pounds  steam,  working  pressure,  and  thereupon  the  latter  offered 
to  furnish  a  described  boiler,  and  he  accepted  the  offer.  The  boiler 
specified  was  furnished,  but  it  failed  to  produce  130  pounds  steam, 
working  pressure,  or  to  do  the  work  for  which  the  manufacturer 
knew  the  purchaser  ordered  it.  The  Supreme  Court  of  Wisconsin 
decided  that  there  was  no  implied  warranty  that  it  would  accomplish 
the  particular  purpose  for  which  it  was  bought,  and  said :  "The  dis- 
tinction seems  to  be  between  the  manufacture  or  supply  of  an  article 
to  satisfy  a  required  purpose,  and  the  manufacture  or  supply  of  a 
specified,  described,  and  defined  article,  as  in  this  case." 

In  Goulds  v.  Brophy,  42  Mum.  109.  112,  43  N.  W.  834,  835,  6 
L.  R.  A.  392,  the  vendee  ordered  from  the  catalogue  of  the  manu- 
facturer an  auger  outfit  to  bore  wells.  The  vendor  furnished  the 
outfit,  but  it  was  not  suitable  to  bore  the  wells  which  the  vendee  de- 
sired to  sink.  The  Supreme  Court  of  Minnesota  held  that  there 
was  no  implied  warranty  that  it  would  do  so,  and  said :  "There  was 
an  implied  warranty- — or.  more  correctly  speaking,  condition  of  the 
contract — that  it  should  conform  to  the  description,  and  be  of  good 
material  and  workmanship  according  to  that  description,  but  none 
that  it  should  answer  the  purpose  described  or  supposed." 

There  are  many  authorities  to  the  same  effect,  but  it  would  be 
a  work  of  supererogation  to  review  them.    The  contract  of  the  Calyx 


384  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

Drill  Company  in  this  case  was  expressed  in  writing.  It  was  that 
it  would  make  and  deliver  to  the  purchaser,  Mallory,  one  class  F3 
drill,  and  certain  other  machines  and  articles,  which  were  definitely 
specified  in  the  contract.  When  it  supplied  these  articles,  it  performed 
its  agreement,  whether  they  were  suitable  to  perform  the  specific  work 
of  boring  holes  in  the  land  controlled  by  the  vendee  in  Lucas  county, 
Iowa,  or  not.  There  is  no  averment  or  proof  that  they  were  not 
fit  to  accomplish  the  general  purpose  for  which  they  were  made — to 
bore  holes  in  the  earth  under  ordinary  circumstances.  The  contract 
of  the  Calyx  Drill  Company  was  not  that  it  would  make  and  deliver 
a  drill  which  would  sink  holes  in  the  ground  of  the  vendee  in  Lucas 
county  as  rapidly  and  economically  as  a  diamond  drill ;  and,  if  it  had 
made  and  delivered  a  drill  which  would  have  done  this,  it  would 
have  been  required,  if  the  testimony  of  the  defendants  is  true,  to  have 
furnished  a  diflierent  drill  and  different  machinery  from  that  described 
in  its  contract,  and  in  so  doing  it  would  have  failed  to  perform  it. 

The  reception  of  the  evidence  and  the  charge  of  the  court  upon 
this  subject  were  erroneous  (1)  because  there  was  no  implied  war- 
ranty that  the  drill  and  machinery  would  be  fit  to  bore  holes  through 
the  specific  strata  in  the  earth  in  Lucas  county;  and  (2)  because,  if 
there  had  been  such  a  warranty,  it  would  not  have  included  a  cove- 
nant that  the  machinery  would  sink- them  as  rapidly  and  economically 
as  a  diamond  drill.  Such  a  covenant  could  be  imported  into  the 
contract  only  by  an  express  agreement,  and  such  an  agreement  was 
excluded  by  the  fact  that  the  contract  is  in  writing,  and  by  the  rule 
that,  where  the  written  contract  of  the  paries  is  complete  in  itself, 
the  conclusive  legal  presumption  is  that  it  embodies  the  entire  engage- 
ment of  the  parties,  and  the  manner  and  extent  of  their  obligations, 
so  that  parol  evidence  of  other  terms  is  inadmissible  to  extend,  modify, 
or  contradict  it.  Green  v.  Chicago  &  N.  W.  Ry.  Co.,  35  C.  C.  A.  68, 
71,  92  Fed.  873,  877;  McKinley  v.  Williams,  20  C.  C.  A.  312,  319, 
74  Fed.  94,  101 ;  Wilson  v.  New  U.  S.  Ranch  Co.,  20  C.  C.  A.  244, 
249,  73  Fed.  994,  999 ;  Union  Selling  Co.  v.  Jones,  63  C.  C.  A.  224, 
227,  128  Fed.  672,  675. 

The  judgment  is  accordingly  reversed,  and  the  case  is  remanded  to 
the  court  below,  with  instructions  to  grant  a  new  trial. ^^ 


JAMES  DRUMMOXD  &  SONS  v.  E.  H.  VAN  INGEN  &  CO. 

(House  of  Lords,  1887.     12  App.  Cas.  284.) 

x^ction  for  the  price  of  goods.  Counter-claim  for  damages  on  the 
ground  that  the  goods  were  not  merchantable.  An  order  having 
been  made  for  the  trial  of  certain  preliminary  issues  in  fact  by  Day, 
J.,  without  a  jury  before  any  of  the   other  questions   of  fact,  that 

19A  dissenting  opinion  was  delivered  by  Pliilips,  District  Judge. 


Sec.  3)  IMPLIED   WARRANTY    OF    QUALITY  385 

learned  judge  made  certain  findings,  which  were  affirmed  by  the  Court 
of   Appeals.     From  the   decision   the  present   appeal   was   brought.-" 

Lord  Herschell.  *  *  *  The  plaintiffs  were  manufacturers  at 
Bradford;  the  defendants  were  merchants  dealing  in  woollen  and 
worsted  cloths,  carrying  on  business  in  Huddersfield  and  New  York. 

The  order  for  the  goods  in  respect  of  which  the  present  litigation 
has  arisen  was  given  by  the  defendants  to  the  plaintiffs  in  1883.  The 
goods  ordered  were  described  as  "worsted  coatings,"  and  they  were 
to  correspond  in  quality  and  weight  with  patterns  which  had  been 
supplied  by  the  plaintiffs.  They  were  of  a  description  known  in  the 
trade  as  "corkscrew,"  having  the  warp  on  either  side  and  the  weft 
not  exposed  to  view.  The  goods,  when  delivered,  were  shipped  to 
the  United  States,  and  sold  by  the  defendants  to  various  purchasers 
there.  It  turned  out,  as  I  think  the  evidence  establishes,  that  owing 
to  the  mode  of  manufacture  there  was  a  great  tendency  in  the  warp 
to  slip,  and  this  to  so  serious  an  extent  that  when  made  into  gar- 
ments in  the  ordinary  manner  the  seams  gave  way  with  no  more 
than  ordinary  tension,  and  the  braid  became  detached  from  the  cloth. 
In  consequence  of  this  defect  many  purchasers  from  the  defendants 
returned  the  goods  to  them,  or  compelled  them  to  make  allowances, 
for  which  they  sought  compensation  by  counterclaim  in  the  present 
action. 

It  is  important  to  observe  that  the  contract  for  1883  was  not  the 
first  dealing  between  the  parties.     The  defendants  had  purchased  of  i 
the  plaintiffs  a  quantity  of  "corkscrew"  worsted  coatings  in  the  pre-  I 
vious  year,  and  I   cannot  see  any  evidence  in  the  correspondence  | 
which  passed,  or  in  the  oral  communications,  to   shew  that  it  was 
intended  by  either  of  the  parties  to  the  contract  of   1883  that  the 
goods  should  be  of  a  different  character  to  those  of  the  previous 
year  in  any  particular  material  to  the  controversy  which  has  to  be 
determined  in  this   action.      It  is   true  that   the   purchasers   desired 
goods  of  a  somewhat  softer  "handle";    but  I  think  it  is  abundantly 
clear  on  the  evidence  that  this  was   a  matter  of  "finish,"  and  that 
it  was  not  the  endeavour  to  give  a  softer  "handle"  which  led  to  the 
defect  of  excessive  slipping, 

1  have  said  that  the  goods  were,  by  the  order,  to  conform  to  cer-\ 
tain  patterns  supplied  by  the  plaintiffs  to  the  defendants,  and  ap-| 
proved  of  by  them.  There  is  no  doubt  that  the  bulk  of  the  goods 
corresponded  in  every  particular  with  these  patterns ;  and  this,  the 
plaintiffs  allege,  is  a  complete  answer  to  the  defendants'  claim.  The 
tendency  to  slip  is  not,  they  insist,  properly  to  be  called  a  defect 
but  a  characteristic  of  the  manufactured  article,  which  existed  in  the 
sample  just  as  much  as  in  the  bulk  of  the  goods.     I  do  not  think 

2  0  The  statement  of  the  case  is  abbreviated,  and  part  of  the  opinion  is 
omitted. 

Wo  0  D  w ,  Sales — 25 


3{SG  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

it  is  very  material  what  name  is  given  to  it;  but  I  confess  it  strikes 
me  that  a  characteristic  arising  from  a  particular  mode  of  manu- 
facture which  renders  the  manufactured  article  less  useful  for  the 
purpose  for  which  such  an  article  is  ordinarily  used,  without,  as  far 
as  appears,  any  counterbalancing  advantage,  may  well  be  called  a 
defect. 

I  think  it  is  proved  by  the  evidence  that  this  defect  existed  to 
such  an  extent  that  the  worsted  coatings  could  not  be  used  for  the 
purpose  of  being  made  into  coats  in  the  manner  usual  with  goods 
of  the  same  general  description  and  quality,  and  that  they  could  only 
be  made  into  garments  capable  of  resisting  ordinary  tension  by  the 
adoption  of  special  precautions  both  in  regard  to  breadth  of  seam 
and  method  of  sewing.  The  question  arises  whether,  in  these  cir- 
cumstances, the  plaintiffs  have  complied  with  their  contract  by  deliv- 
ering coatings  precisely  corresponding  in  quality  and  weight  with 
the  patterns,  or  whether  they  are  liable  to  the  defendants. 

Let  me  consider,  first,  how  the  case  would  have  stood  if  no  sam- 
ples had  been  supplied.  Suppose  the  defendants  had  simply  ordered 
worsted  coatings  similar  to  those  they  had  purchased  in  the  pre- 
vious year,  but  with  a  difference  of  colour,  design,  and  handle.  Could 
the  plaintiffs  have  justified  supplying  under  such  an  order  coatings 
such  as  those  which  have  given  rise  to  this  litigation?  It  is  true 
that  the  purpose  for  which  the  goods  were  required  was  not,  as  in 
Jones  V.  Bright,  5  Bing.  533,  stated  in  express  terms,  but  it  was 
indicated  by  the  very  designation  of  the  goods,  "coatings."  I  think 
that  upon  such  an  order  the  merchant  trusts  to  the  skill  of  the  man- 
ufacturer, and  is  entitled  to  trust  to  it,  and  that  there  is  an  implied 
warranty  that  the  manufactured  article  shall  not  by  reason  of  the 
mode  of  manufacture  be  unfit  for  use  in  the  manner  in  which  goods 
of  the  same  quality  of  material,  and  the  same  general  character  and 
designation,  ordinarily  would  be  used.  I  think  too  that  where  the 
article  does  not  comply  with  such  a  warranty  it  may  properly  be 
said  to  be  unmerchantable  in  the  sense  in  which  that  word  is  used 
in  relation  to  transactions  of  this  nature. 

It  was  urged  tor  the  appellants  by  the  Attorney-General,  in  his  able 
argument  at  the  bar,  that  it  would  be  unreasonable  to  require  that 
a  manufacturer  should  be  cognisant  of  all  the  purposes  to  which  the 
article  he  manufactures  might  be  applied,  and  that  he  should  be 
acquainted  with  all  the  trades  in  which  it  may  be  used.  I  agree. 
Where  the  article  may  be  used  as  one  of  the  elements  in  a  variety 
of  other  manufactures,  I  think  it  may  be  too  much  to  impute  to  the 
maker  of  this  common  article  a  knowledge  of  the  details  of  every 
manufacture  into  which  it  may  enter  in  combination  with  other  ma- 
terials. But  no  such  question  arises  here.  There  seems  nothing  un- 
reasonable in  expecting  that  the  maker  of  "coatings"  should  know 
that  they  are  to  be  turned  into  coats  and  other  garments,  and  that 


Sec.  3)  IMPLIED  WARRANTY  OP  QUALITY  387 

he  should  further  know  what  coatings  will  and  wliat  will  not  be  ca- 
pable of  use  for  this  purpose  in  the  ordinary  methods. 

It  seems  to  me  not  open  to  doubt  that  in  the  case  which  I  have 
supposed  the  manufacturer  would  be  liable.  Does  it  then  make  any 
difference  that  the  plaintiffs  furnished  patterns  which  were  approved 
of  by  the  defendants,  and  that  the  goods  delivered  were  in  complete 
conformity  with  their  patterns?  Except  upon  the  assumption  (with 
which  I  will  deal  presently)  that  the  patterns  ought  to  have  conveyed 
to  the  defendants  knowledge  of  the  defect  of  which  they  complain, 
I  cannot  think  that  it  does. 

When  a  purchaser  states  generally  the  nature  of  the  article  he 
requires,  and  asks  the  manufacturer  to  supply  specimens  of  the  mode  i 
in  which  he  proposes  to  carry  out  the  order,  he  trusts  to  the  skill ' 
of  the  manufacturer  just  as  much  as  if  he  asked  for  no  such  speci- 
m.ens.  And  I  think  he  has  a  right  to  rely  on  the  samples  supplied 
representing  a  manufactured  article  which  will  be  fit  for  the  purposes 
for  which  such  an  article  is  ordinarily  used,  just  as  much  as  he  has 
a  right  to  rely  on  manufactured  goods  supplied  on  an  order  without 
samples  complying  with  such  a  warranty. 

I  adopt  what  was  said  by  Willes,  J.,  in  Mody  v.  Gregson,  Law 
Rep.  4  Ex.  49,  53 :  "The  object  and  use  of  either  inspection  of  bulk 
or  sample  alike  are  to  give  information,  disclosing  directly  through 
the  senses  what  any  amount  of  circumlocution  might  fail  to  express. 
It  seems  difficult,  therefore,  to  ascribe  any  greater  effect  to  a  sample 
in  excluding  implication  than  would  be  ascribed  to  express  words  in 
the  contract  giving,  as  far  as  words  could  give,  the  same  amount  of 
information ;  and  as  to  such  words,  the  doctrine  that  an  express 
provision  excludes  implication,  does  not  affect  cases  in  which  the 
express  provision  appears  on  the  true  construction  of  the  contract 
to  have  been  superadded  for  the  benefit  of  the  buyer." 

There  is  no  doubt  that  the  implied  warranty  will  be  excluded  as 
regards  any  defects  which  the  sample  would  disclose  to  a  buyer  of 
ordinary   diligence   and    experience.     The   inquiry,   therefore,   arises 
whether  the  defendants  by  "due  diligence  in  the  use  of  all  ordinary\ 
and  usual  means"  would  have  detected  in  the  patterns  the  defects! 
of  which  they  now  complain.     I  think  not.     What  is  "due  diligence"  I 
must  depend  upon  the  circumstances.     Having  regard  to  the  order 
given  in  the  previous  year,  and  the  mode  in  which  that  order  was 
fulfilled,  I  think  that  when  the  defendants  made  the  contract  there 
was  nothing  which  could  reasonably  lead  them  to  anticipate  that  the 
patterns  represented  goods  possessing  the  defect  which  was,  in  fact, 
inherent  in  them.     And  I  am  satisfied  upon  the   evidence  that  the 
defendants  who,  undoubtedly,  did  not  discern  the  detect,  did  not  fail 
to  do  so  from  neglecting  to  use  the  means  usually  adopted  by  buyers 
under  like  circumstances. 

I  have  therefore  arrived  at  the  conclusion  that  the  learned  judge 
who  tried  the  case  tok  a  correct  view  of  the  facts  on  this  part  of 


388  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

it,   and   that   his    decision    was   properly   affirmed   by   the    Court    of 
Appeal.     *     *     * 

Order  appealed  from  affirmed;   and  appeal  dismissed  with  costs.  ^^ 


FARRELL  v.  MANHATTAN  MARKET  CO.  (three  cases). 

(Supreme  Judicial  Court  of  Massachusetts,  190S.     198  Mass.  271,  84  N.  E.  481, 
15  L.  R.  A.  [N.  S.]  SS4,  126  Am.  St.  Rep.  436,  15  Aun.  Cas.  1076.) 

LoRiNG,  J.--  These  cases  come  up  on  an  exception  to  a  ruling  di- 
recting a  verdict  for  the  defendant. 

The  plaintiff  in  the  third  case  (whom  we  shall  speak  of  as  the 
plaintiff)  was  the  mother  of  those  in  the  other  two.  The  defendant 
is  a  corporation  engaged  in  carrying  on  a  retail  market  and  pro- 
vision store.  The  jury  were  warranted  in  finding  the  following  to 
be  the  facts  in  the  case : 

On  a  Saturday  evening  in  July  the  plaintiff,  in  the  words  of  the 
bill  of  exceptions,  "purchased  a  chicken  from  one  of  the  salesmen" 
of  the  defendant.  She  asked  the  salesman  if  it  was  a  cold  storage 
fowl,  and  he  answered :  "Don't  you  know  a  good  thing  when  you 
see  it?  Its  strictly  fresh."  She  paid  12^0  cents  a  pound,  the  price 
"having  been  reduced  from  25  cents  per  pound,  which  was  the  de- 
fendant's custom  on  Saturday  night  in  several  of  its  departments." 

The  next  morning  at  10  o'clock  she  removed  the  entrails,  washed 
the  fowl,  wiped,  boiled  and  then  roasted  it,  and  at  4  o'clock  she  and 
the  other  two  plaintiffs  ate  a  portion  of  it  and  were  made  sick;  what 
they  suffered  from  was  ptomaine  poisoning.     *     *     * 

At  the  conclusion  of  the  evidence  the  plaintiffs  requested  the  judge 
to  rule  "that  a  retail  dealer  in  provisions  selling  chicken  under  the 
circumstances  in  this  case  impliedly  warranted  the  chicken  fit  for 
food,"  also  "that  it  was  a  question  of  fact  for  the  jury  to  say  whether 
or  not  the  chicken  \vas  fit  for  food,  whether  or  not  the  plaintiffs 
were  injured  by  eating  of  diseased  chicken,  and  whether  or  not  the 
defendant  was  negligent  in  failure  to  make  a  sufficient  and  proper 
examination  of  the  chicken  before  selling  it  to  the  plaintiff  for  con- 
sumption." The  presiding  judge  "declined  to  give  the  plaintiffs'  re- 
quests, saying  that  he  did  not  feel  called  upon  to  make  such  ruling, 
and  ruled  that  there  was  not  sufficient  evidence  that  would  warrant 
the  jury  in  finding  a  verdict  for  the  plaintiff.^,  and  ordered  a  verdict 
for  the  defendant  in  all  three  cases." 

21  Concurring  opinions  were  delivered  by  the  Earl  of  Selborne  and  Lord 
Macnaghteu. 

For  a  case  in  which,  although  samples  were  exhibited  and  examined,  it 
was  held  that  there  was  no  warranty  that  the  bulk  should  correspond  with 
the  samples,  see  Gunther  v.  Atwell.  19  Md.  157  (1802). 

22  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  3)  IMPLIED    WARRANTY    OF    QUALITY  389 

1.  It  was  held  in  Norton  v.  Doherty,  3  Gray,  Z72,  63  Am.  Dec. 
758,  on  the  authority  of  WilHamson  v.  AlHson,  2  East,  446,  that  tort 
for  a  false  warranty  as  well  as  an  action  of  contract  lies  in  case  a 
chattel  is  sold  with  warranty  and  the  warranty  is  broken.  A  num- 
ber of  earlier  English  cases  to  the  same  effect  are  collected  by 
Holmes,  J.,  in  Nash  v.  ^Minnesota  Title  Ins.  Co.,  163  Mass.  574,  587, 
40  N.  E.  1039,  28  L.  R.  A.  753,  47  Am.  St.  Rep.  489,  and  the  prop- 
osition is  there  repeated.  To  the  same  effect  see  Emmons  v.  Al- 
vord,  177  Mass.  466,  470,  59  N.  E.  126,  and  Boston  Woven  Hose 

6  Rubber  Co.  v.  Kendall,  178  Mass.  232,  237,  59  N.  E.  657,  51  L. 
R.  A.  781,  86  Am.  St.  Rep.  478.  In  tort  for  a  false  warranty,  the 
scienter  need  not  be  alleged,  and  if  alleged  it  need  not  be  proved. 
Shaw,  C.  J.,  in  Norton  v.  Doherty,  3  Gray,  Z72,  ZIZ,  63  Am.  Dec. 
758;  Holmes,  C.  J.,  in  Nash  v.  Minnesota  Title  Ins.  Co.  and  Em- 
mons V.  Alvord,  ubi  supra. 

We  assume  therefore  that  an  action  of  tort  may  be  maintained 
for  breach  of  a  warranty.  In  the  case  at  bar  the  plaintiff  has  alleged 
that  the  defendants  sold  the  fowl  to  the  plaintiff  with  the  implied 
warranty  that  it  was  fit  for  food.  The  principal  question  in  the  case 
is  whether  that  allegation  has  been  made  out. 

In  Howard  v.  Emerson,  110  Mass.  320,  14  Am.  Rep.  608,  it  was 
decided  that  in  the  sale  of  a  cow  by  a  farmer  to  a  butcher  to  be  cut 
up  for  meat  there  was  no  implied  warranty  that  it  was  fit  for  that 
purpose.  After  stating  the  general  rule  to  be  that  in  a  sale  of  goods 
the  maxim  caveat  emptor  applies  and  that  the  defendant  contended 
that  articles  of  food  sold  for  immediate  domestic  use  are  an  excep- 
tion, Morton,  J.,  said :  "But  we  think  that  this  exception,  if  estab- 
lished, does  not  extend  beyond  the  case  of  a  dealer  who  sells  pro- 
visions directly  to  the  consumer  for  domestic  use." 

Giroux  V.  Stedman,  145  Mass.  439,  14  N.  E.  538,  1  Am.  St.  Rep. 
472,  was  a  similar  decision.  There  the  defendants,  who  were  farm- 
ers, killed  two  hogs  and  sold  them  to  the  plaintiffs  to  be  eaten.  The 
presiding  judge  instructed  the  jury  as  to  the  general  rule  laid  down 
in  Howard  v.  Emerson ;  next  he  told  them  that  there  was  an  excep- 
tion in  case  of  the  sale  of  provisions  by  a  dealer  (although  that  had 
been  left  open  in  Howard  v.  Emerson),  but  he  added  that  that  excep- 
tion did  not  apply  to  a  sale  by  a  farmer,  and  left  the  case  to  the 
jury  on  the  defendants'  knowledge  of  the  condition  of  the  hogs. 
In  disposing  of  an  exception  to  this  instruction  Devens,  J.,  said : 
"Whether  this  exception  exists  or  not,  it  is  not  important  in  the 
case  at  bar  to  inquire,  as  it  cannot  be,  and  was  not,  contended  that 
the  defendants  were  brought  within  it." 

It  becomes  necessary  in  the  base  at  bar  to  consider  the  question 
left  open  in  these  two  cases,  and  to  decide  whether  there  is  such 
an  exception  to  the  general  rule  which  obtains  in  the  sale  of  chattels. 

A  case  of  first  importance  on  this  subject  is  Bigge  v.  Parkinson, 

7  H.  &  N.  955,  decided  by  the  Exchequer  Chamber  in  1862. 


390  OBLIGATIONS    OF    SELLER    AND   BUYER  (CIl.  1 

Before  that  case  was  decided  the  law  on  the  subject  was  not  in  a 
satisfactory  condition.  It  was  laid  down  in  a  number  of  cases  in  the 
year  books,  collected  in  Burnby  v.  Bollett,  16  M.  &  W.  644,  that  the 
keeper  of  a  tavern  is  liable  for  furnishing  bad  food  or  bad  wine  to 
his  guests.  The  case  in  Year  Book  9  Henry  VI,  53,  may  be  taken 
as  an  example.  It  is  there  said :  "If  I  come  into  a  tavern  to  eat 
and  he  gives  and  sells  to  me  beer  and  flesh  which  are  corrupt  by 
which  I  am  put  into  a  great  sickness,  I  shall  have  against  him  my 
action  on  the  case  clearly,  even  although  he  made  no  guaranty  to 
me."  Mr.  Justice  Blackstone  had  laid  it  down  without  citing  any 
authorities  that :  "In  contracts  for  provisions  it  is  always  implied 
that  thev  are  wholesome."    3  Bl.  Com.  165. 

In  Burnby  v.  Bollett,  16  M.  &  W.  644  (decided  in  1847),  it  had 
been  decided  that  in  the  sale  of  the  carcass  of  a  pig  by  one  not  a 
dealer  where  the  carcass  was  inspected  by  the  buyer,  there  was  no 
implied  warranty  of  soundness.  Parke,  B.,  in  delivering  the  opinion 
of  the  Court  of  Excliequer  in  that  case  suggested  that  the  cases  in 
the  year  books  depended  on  statutes  repealed  before  the  sale  then 
in  question  making  it  an  offense  for  victualers,  butchers  and  other 
common  dealers  in  victuals  to  sell  corrupt  victuals. 

In  Emmcrton  v.  Mathews,  decided  by  the  Court  of  Exchequer 
in  the  same  year  and  reported  in  the  same  volume  (7  H.  &  N.  586) 
as  Bigge  v.  Parkinson,  it  was  held  that  in  the  sale  of  a  carcass  of 
meat  by  one  who  sold  meat  on  commission  for  his  consignors  there 
was  no  implied  warranty  of  soundness.  This  case,  as  reported  in 
7  H.  &  N.  586,  would  seem  to  go  on  the  ground  that  one  who  sells 
meat  as  a  factor  for  others  is  not  a  dealer.  But  in  the  report  in  5 
L.  T.  (N.  S.)  681,  Pollock,  C.  B.,  is  reported  to  have  said  that  "the 
plaintiff  bought  on  his  own  inspection,"  and  in  Jones  v.  Just,  L.  R. 
3  O.  B.  197,  202.  The  decision  in  Emmerton  v.  Mathews  was  stated 
to  have  been  made  on  the  ground  that  the  plaititiff  selected  the  meat. 

This  was  the  state  of  the  law  on  the  subje-ct  when  Bigge  v.  Parkin- 
son came  up  for  decision.  Bigge  v.  Parkinson  was  a  case  where 
the  plaintiffs,  being  ship  owners,  had  chartered  a  ship  to  the  East 
India  Company  to  carry  troops  from  London  to  Bombay.  They  had 
made  a  contract  with  the  defendant,  who  was  a  provision  merchant, 
by  which  the  defendant  agreed  to  supply  the  ship  with  provisions 
and  stores  for  the  troops  at  so  much  a  head.  Under  this  contract 
the  defendant  had  supplied  provisions  and  stores  which  were  unsound 
and  unwholesome,  and  it  was  held  that  he  was  liable  on  an  implied 
warranty  that  the  provisions  and  stores  supplied  should  be  fit  to 
be  eaten. 

The  ground  on  which  this  conclusion  was  reached  is  thus  stated 
by  Cockburn,  C.  J.,  who  delivered  the  opinion  of  the  Court  of  Ex- 
chequer Chamber  after  time  had  been  taken  for  consideration :  "The 
principle  of  law  is  correctly  stated  in  the  passage  cited  from  Chitty 
on  Contracts  (6th  Ed.)  p.  399.     Where  a  buyer  buys  a  specific  arti- 


Sec.  3)  IMPLIED  WARRANTY  OF  QUALITY  391 

cle,  the  maxim  'Caveat  emptor'  applies ;  but  where  the  buyer  orders 
goods  to  be  suppHed,  and  trusts  to  the  judgment  of  the  seller  to  se- 
lect goods  which  shall  be  applicable  to  the  purpose  for  which  they 
are  ordered,  there  is  an  implied  warranty  that  they  shall  be  reason- 
ably fit  for  that  purpose ;  and  I  see  no  reason  why  the  same  war- 
ranty should  not  be  comprehended  in  a  contract  for  the  sale  of 
provisions." 

The  rule  thus  laid  down  by  Cockburn,  C.  J.,  in  Bigge  v.  Parkin- 
son, has  been  followed  in  all  subsequent  cases  and  is  now  established 
as  the  law  in  England  on  the  question  now  before  us. 

The  first  proposition  laid  down  in  Bigge  v.  Parkinson  is  that  there 
is  no  difference  between  a  sale  of  provisions  and  the  sale  of  other 
articles  in  respect  to  there  being  or  not  being  an  implied  warranty 
that  they  are  fit.  In  his  opinion  in  Bigge  v.  Parkinson  Chief  Justice 
Cockburn  first  states  the  general  rule  that  caveat  emptor  appliei' 
where  a  person  buys  a  specific  article ;  he  then  states  that  wher( 
goods  (not  articles  of  food)  are  supplied  under  a  contract  and  th( 
buyer  trusts  to  the  judgment  of  the  seller  to  select  the  goods,  ther( 
is  an  implied  warranty  of  fitness ;  he  then  decides  that  these  rules 
apply  to  a  contract  to  supply  provisions.  Since  the  decision  in  Bigge 
V.  Parkinson  the  question  of  an  implied  warranty  of  wholesomeness 
in  the  sale  of  provisions  always  has  been  treated  as  a  question  to  be 
determined  by  the  application  of  the  rules  which  obtain  in  case  of 
the  sale  of  other  chattels,  and  not  as  an  exception.  See  to  that 
efifect  Chalmers,  Sale  of  Goods  Act  (1893),  32.  See,  also,  for  ex- 
ample, Mellor,  J.,  in  the  leading  case  of  Jones  v.  Just,  L.  R.  3  O. 
B.  197,  202;  FitzGibbons,  L.  J.,  in  Wallis  v.  Russell  [1902]  2  I.  R. 
585,  612. 

The  second  proposition  laid  down  in  Bigge  v.  Parkinson  is  that 
the  rule  which  makes  a  dealer  liable  for  selling  unsound  provisions 
is  the  rule  which  is  applied  where  a  chattel  (no  matter  what  kind 
of  chattel  it  may  be)  is  ordered  of  a  manufacturer  or  dealer  for  a 
particular  purpose.  In  such  a  case  there  is  an  implied  warranty  that 
the  article  furnished  will  be  fit  for  the  particular  purpose.  It  was 
settled  before  Bigge  v.  Parkinson  was  decided  that  this  rule  applied 
to  dealers  as  well  as  to  manufacturers.  Jones  v.  Bright,  5  Bing.  533 ; 
Gardiner  v.  Gray,  4  Camp.  144.     *     *     * 

There  is  one  difference  between  a  contract  with  a  dealer  to  supply 
ordinary  articles  and  a  contract  with  a  dealer  to  supply  food :  In  a 
contract  with  a  dealer  to  supply  food  it  is  not  necessary  to  state  to 
the  dealer  that  the  food  is  to  be  eaten.  That  goes  without  saying. 
A  contract  for  the  supply  of  food  without  stating  the  purpose  for 
which  the  food  is  required  stands  on  the  same  footing  as  a  contract 
to  supply  other  articles  when  the  particular  purpose  for  which  they 
are  wanted  has  been  stated  to  the  dealer. 

Bigge  v.  Parkinson  was  a  case  where  goods  were  supplied  under 
a  pre-existing  contract.     But  there  is  no  difiference  between  a  deal- 


392  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

er's  supplying  provisions  under  a  contract  previously  made  and  a 
dealer's  supplying  provisions  in  response  to  an  order  to  be  accepted 
by  shipping  the  provisions.  The  material  fact  is  that  the  purchaser 
makes  known  to  the  seller  that  he  relies  on  his  skill  and  judgment 
in  selecting  the  provisions  ordered.  Beer  v.  Walker,  37  L.  T.  (N. 
S.)  C.  P.  278,  decided  before  the  sale  of  goods  act,  and  Burrows  v. 
Smith,  10  Times  R.  246,  decided  since  that  act  was  passed,  were 
cases  of  orders.  To  the  same  effect  see  Grove,  J.,  in  Smith  v.  Baker, 
40  L.  T.  (N.  S.)  261,  263. 

Finally,  provisions  may  be  ordered  by  the  purchaser  in  person  in 
the  dealer's  shop,  in  such  a  way  that  it  is  made  known  to  the  dealer 
that  his  knowledge  and  skill  are  relied  on  to  supply  wholesome  food, 
and  if  they  are  so  ordered  he  is  liable  if  thev  are  not  lit  to  be  eaten. 
That  was 'decided  in  Wallis  v.  Russell,  [1902]  2  I.  R.  585.  In  that 
case  the  plaintiff  sent  her  granddaughter  to  buy  two  nice  fresh  crabs 
for  tea.  The  granddaughter  went  to  the  defendant,  a  dealer,  and  de- 
livered the  message.  The  defendant's  assistant  selected  two.  There- 
upon the  granddaughter,  pointing  to  a  third  crab,  asked  the  assistant 
if  he  did  not  think  that  it  was  a  better  one.  The  assistant  took  it 
up,  felt  it,  said  it  was  by  the  weight  one  should  judge  and  not  the 
size,  and  put  it  aside.  The  granddaughter  testified  that  she  relied 
altogether  on  the  assistant's  judgment.  In  answer  to  a  question  put 
by  the  presiding  judge  the  jury  found  that  the  plaintiff,  through  the 
jgrauddaughter,  relied  on  the  defendant's  assistant  to  select  fresh 
land  reasonably  fit  crabs.  They  also  found  that  the  plaintiff,  through 
'the  granddaughter,  had  an  opportunity  to  examine  the  crabs  at  the 
time  of  the  sale  and  that  the  defendant  honestly  believed  that  the 
crabs  were  fresh  and  fit  for  food.  There  was  no  contention  that  the 
defendant  was  negligent,  and  on  the  facts  such  a  contention  would 
have  been  futile.  The  plaintiff  and  her  granddaughter  ate  the  crabs 
and  were  both  made  violently  ill.  In  an  action  brought  by  the  plain- 
tiff it  was  held  by  the  High  Court  of  Justice  and  on  appeal  by  the 
Court  of  Appeal  for  Ireland  that  she  could  recover.  This  case  arose 
under  the  sale  of  goods  act.  But  not  only  is  that  act  as  a  whole  a 
codification  of  the  law  as  it  existed  before,  but  the  subsection  in 
question  (subsection  1  of  section  14)  is  in  substance  and  almost  in 
terms  the  fourth  rule  laid  down  by  Mellor,  J.,  in  Jones  v.  Just,  L.  R. 
3  O.  B.  197,  202,  203.  If  the  purchaser  who  goes  in  person  to  the 
provision  store  in  fact  gives  his  order  in  such  a  way  that  he  leaves 
/the  selection  of  the  food  to  the  seller's  skill  and  judgment,  we  have 
/a  case  which  stands  on  the  same  footing  as  those  where  provisions 
are  supplied  under  a  previous  contract  or  are  shipped  in  pursuance 
^of  a  written  order. 

The  rule  now  established  in  England  is  that  in  the  sale  of  an 
article  of  food  by  one  not  a  dealer  there  is  no  implied  condition  or 
warranty  that  it  is  fit  to  be  eaten.  Burnby  v.  Bollett,  16  M.  &  W, 
644;    Emmerton  v.  Mathews,  7  H.  &  N.  586;    Smith  v.  Baker,  40 


Sec.  3)  IMPLIED  WARRANTY  OF  QUALITY  393 

L.  T.  (N.  S.)  261 ;  Cockburn,  C.  J.,  in  Bigge  v.  Parkinson,  7  H.  & 
N.  955.  These  are  all  of  them  cases  decided  before  the  sale  ot 
goods  act.  Since  the  sale  of  goods  act,  if  the  sale  is  made  by  one 
not  a  dealer  there  is  no  liability,  by  force  of  section  14.  If  the  sal 
is  by  a  dealer  and  the  selection  of  food  is  left  to  him,  it  is  an  implie 
term  or  condition  of  the  sale  that  the  provisions  sold  shall  be  fit  fo 
food  whether  supplied  under  a  pre-existing  contract  (Bigge  v.  Park 
inson,  7  H.  &  N.  955),  or  in  response  to  an  order  not  given  in  person 
(Beer  v.  Walker,  Z7  L.  T.  [N.  S.]  C.  P.  278;  Burrows  v.  Smith, 
10  Times  R.  246;  Grove,  J.,  in  Smith  v.  Baker,  40  L.  T.  [N.  S.] 
261,  263),  or  even  when  the  order  is  given  in  person  in  the  dealer's 
shop,  provided,  as  we  have  said,  that  the  selection  is  left  to  the 
dealer  (Wallis  v.  Russell  [1902]  2  I.  R.  585).  But  even  when  the^ 
sale  is  by  a  dealer,  if  the  provisions  are  selected  by  the  buyer  and"^ 
the  selection  is  not  left  to  the  judgment  and  skill  of  the  dealer,  the 
general  rule  applies  and  the  dealer  is  not  liable  (in  the  absence  of 
knowledge  by  the  dealer  that  the  provisions  are  unsound)  if  the  pro- 
visions are  not  fit  for  food.  Mellor,  J.,  in  Jones  v.  Just,  3  O.  B. 
197,  202;  Emmerton  v.  Mathews,  5  L.  T.  (N.  S.)  681,  and  as  inter- 
preted by  Mellor,  J.,  ubi  supra;  Cockburn,  C.  J.,  in  Bigge  v.  Park- 
inson, 7  H.  &  N.  955,  before  the  sale  of  goods  act.  Under  the  sale 
of  goods  act  this  is  so  by  force  of  section  14  because  the  case  does 
not  come  within  any  of  the  subsections.     *     *     * 

We  are  of  opinion  that  the  rule  stated  above  now  established  in 
England  is  the  true  rule  as  to  when  there  is  an  implied  term  or  con- 
dition of  soundness  in  the  sale  of  food. 

We  are  also  of  opinion  that  offering  food  for  sale  is  in  itself  a  rep- 
resentation that  it  is  believed  to  be  sound,  and  that  where  there  is 
no  implied  term  or  condition  of  soundness  the  defendant  is  not  liable 
unless  he  knew  of  the  fact  that  the  food  sold  was  not  fit  to  be  eaten. 

Coming  to  the  case  at  bar  and  to  the  allegation  in  the  declara- 
tion that  the  fowl  here  in  question  was  sold  with  an  implied  war- 
ranty that  it  was  fit  for  food :  To  prove  that  allegation  the  burden 
was  on  the  plaintiff  to  prove  that  in  making  the  purchase  here  in 
question  she  relied  on  the  skill  and  judgment  of  the  defendant's  serv- 
ant in  selecting  the  fowl.  In  other  words,  the  burden  is  on  her  to 
make  out  that  the  purchase  of  the  fowl  in  the  case  at  bar  was  not 
the  purchase  of  a  specific  chattel  and  that  it  was  a  purchase  of  the 
same  kind  as  is  a  purchase  where  food  is  shipped  under  a  previous 
contract  or  in  fulfillment  of  an  order  (that  is  to  say,  where  the  buyer 
relies  on  the  seller's  skill  and  judgment). 

It  is  enough  to  dispose  of  this  case  to  say  that  the  plaintifif  did 
not  sustain  the  burden  of  proof  on  that  issue.  The  evidence  did  not 
disclose  how  or  by  whom  the  fowl  was  selected ;  all  that  is  stated  on 
that  point  is  that  "the  plaintiff  Mary  Farrell  went  to  the  defendant's 
store  at  about  9:15  p.  m.  on  Saturday,  July  1,  1905,  and  purchased 
a  chicken  from  one  of  the  salesmen."     Moreover,  so  far  as  the  evi- 


394  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

dence  went,  it  showed  that  in  offering  the  fowls  from  which  the 
one  in  question  was  selected  the  defendant  did  not  offer  to  exercise 
his  skill  and  judgment  in  supplying  sound  food.  The  fowl  in  ques- 
tion was  bought  from  those  exhibited  on  a  Saturday  night  in  July, 
by  the  defendant,  on  a  bargain  counter,  to  be  sold  at  50  cents  on 
the  dollar.  It  is  manifest  that  the  defendant  offered  this  meat  for 
sale  to  avoid  carrying  it  over  Sunday  in  hot  weather,  and  it  is  a  fair 
inference  that  like  all  articles  on  a  bargain  counter  the  selection 
was  to  be  made  by  the  buyer.  See  in  this  connection  the  statement 
of  Sewall,  J.,  in  Emerson  v.  Brigham,  10  Mass.  197,  201,  6  Am. 
Dec.  109 :  "The  difference  is  that  in  the  case  of  provisions  the  artifice 
is  proved,  when  a  victualer  sells  meat  as  fresh  to  his  customers 
at  a  sound  price."     *     *     * 

The  result  is  that  the  exceptions  must  be  overruled.     So  ordered.^^ 


SECTION  4.— DELIVERY  AND  PAYMENT 


JANNEY  et  al.  v.  SLEEPER. 
(Supreme  Court  of  Minnesota,  1SS3.     30  Minn.  473,  16  N.  W.  365.) 

This  action  was  brought  in-  the  municipal  court  of  ]Minneapolis,  to 
recover  the  price  of  glass  alleged  to  have  been  sold  and  delivered  to 
defendant  in  Minneapolis.  The  answer  sets  up  as  a  defence  that  the 
contract  of  sale  required  a  delivery  to  defendant  in  Brainerd,  and  that 
plaintiffs  had  failed  to  make  such  delivery.  Upon  the  trial,  it  appeared 
that  the  plaintiffs  had  shipped  the  glass  to  defendants  by  rail,  and 
that  it  was  broken  in  transit  from  ^Minneapolis  to  Brainerd.  Plain- 
tiffs had  a  verdict,  and  defendant  appeals  from  the  judgment  entered 
thereon. 

Mitchell,  J.^*  *  *  *  2.  The  plaintiffs  were  hardware  mer- 
chants, whose  residence  and  place  of  business  was  in  ^Minneapolis. 
The  defendant  resided  at  Brainerd.  The  plaintiffs,  at  their  place  of 
business  in  ]^Iinneapolis,  agreed  to  sell  and  deliver  to  defendant  a 
quantity  of  glass.  At  the  time  of  making  the  contract,  plaintiffs  did 
not  have  the  goods  on  hand  in  stock,  but  had  to  purchase  them  in  St. 
Louis  in  order  to  meet  their  contract.     The  evidence  as  to  the  place 

23As  to  the  lialjility  of  a  retailer  or  victualer  who  furnishes  unwholesome 
canned  goods  to  a  consumer,  see  Bigelow  v.  Maine  Cent.  R.  Co.  (Me.)  85  Atl. 
396  (loin).  As  to  the  liability  of  the  manufaciurer  to  a  consumer  who  buys 
from  a  retailer,  see  Tomliuson  v.  Armour  &  Co.,  74  N.  J.  Law,  274,  65  Atl. 
8S3  (1907). 

24  Part  of  the  opinion  is  omitted. 


Sec.  4)  DELIVERY    AND   PAYMENT  395 

where  the  goods  were  to  be  dehvered  to  defendant  was  conflicting; 
that  on  the  part  of  plaintiffs  tending  to  prove  that  they  were  to  be 
dehvered  at  Minneapolis  on  the  cars,  while  that  on  the  part  of  de- 
fendant tended  to  prove  that  the  goods  were  to  be  delivered  at  Brain- 
erd.  The  court,  under  the  objection  and  exception  of  defendant,  in- 
structed the  jury  "that  the  burden  of  proof  was  upon  defendant  to/ 
show  by  a  preponderance  of  testimony  that  the  glass  was  to  be  de- 
livered to  him  at  Brainerd,  as  he  claimed,  and  not  in  cars  at  Minne- 
apolis, as  claimed  by  the  plaintiffs."  We  see  no  error  in  this.  If  no^ 
place  be  designated  by  the  contract,  the  general  rule  is  that  the  ar-  i 
tides  sold  are  to  be  delivered  where  they  are  at  the  time  of  the  sale,  j 
The  store  of  the  merchant,  the  shop  of  the  manufacturer,  and  the 
farm  of  the  farmer,  at  wdiich  the  commodities  sold  are  deposited  or 
kept,  must  be  the  place  of  delivery  when  the  contract  is  silent  upon 
the  subject;  at  least,  when  there  are  no  circumstances  showing  that 
a  different  place  was  intended.  This  is  a  rule  of  construction  predi- 
cated upon  the  presumed  understanding  of  the  parties  when  making 
the  contract.  Benj.  Sales,  1018,  1022;  2  Chit.  Cont.  1201,  1202;  2 
Kent,  Comm.  505 ;  Middlesex  Co.  v.  Osgood,  4  Gray  (Mass.)  447 ; 
Smith  v.  Gillett,  50  111.  290;  Hamilton  v.  Calhoun,  2  Watts  (Pa.)  139; 
Lobdell  V.  Hopkins,  5  Cow.  (N.  Y.)  516;  Rice  v.  Churchill,  2  Denio 
(N.  Y.)  145;  Wilmouth  v.  Patton,  2  Bibb  (Ky.)  280;  Sousely  v. 
Burns,  10  Bush  (Ky.)  87. 

This  rule  is  not  changed  by  the  fact  that  plaintiffs  did  not  have  the 
goods  on  hand  at  their  place  of  business  at  the  time  of  the  sale,  but 
had  to  procure  them  elsewhere  in  order  to  fulfill  their  contract.  Po-i 
tentially  and  prospectively  the  goods  were  as  if  then  situate  in  thein 
store  at  Minneapolis.  Hence,  in  the  absence  of  any  evidence  as  tol 
the  place  of  delivery,  it  would  be  presumed  to  be  at  Minneapolis.  To 
overcome  this  presumption  some  evidence  w^ould  be  required  tending 
to  show  that  some  other  place  was  agreed  upon.  This  was,  in  effect, 
all  that  the  language  of  the  court  implied  when  he  instructed  the  jury 
that  the  burden  of  proof  was  upon  defendant  to  show  that  the  goods 
were  to  be  delivered  at  Brainerd,  and  not  Minneapolis.     *     *     * 

Judgment  affirmed. 


CATLIN  et  al.  v.  JONES. 

(Supreme  Court  of  Oregon,  1906.     48  Or.  158,  8.5  Pac.  515.) 

This  is  an  action  to  recover  damages  for  the  breach  of  a  contract  to 
sell  and  deliver  hops.  The  complaint  alleges  that  on  July  15,  1904,  the 
parties  to  this  action  entered  into  a  written  contract,  by  the  terms 
of  which  the  defendant  agreed  to  sell  for  141^2  cents  a  pound  and  de- 
liver to  the  plaintiffs  at  Brooks  station,  on  board  cars  free  of  all  ex- 
pense, from  13,000  to  15,000  pounds  of  hops,  to  be  grown  during  that 
season  in  certain  specified  yards,  and  to  be  of  the  first  average  quali- 


396  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

tv  for  the  year  and  section,  and  to  be  put  up  in  new  baling  cloth^ 
delivery  and  acceptance  to  be  made  between  the  1st  and  10th  of  Oc- 
tober, 1904;  that  the  defendant  had  of  the  hops  mentioned  in  the 
contract  15.000  pounds  or  thereabouts,  produced  upon  the  premises 
described  and  of  the  kind  and  quality  mentioned ;  that  on  the  10th  of 
October,  1904,  the  plaintiffs  sent  their  agent  to  defendant  to  ascer- 
tain whether  he  was  ready  to  deliver  the  hops,  but  they  were  not  all 
then  baled  or  in  a  deliverable  condition,  and  on  the  17th  of  October, 
the  hops  being  baled  and  ready  for  delivery,  the  plaintiffs  tendered 
the  purchase  price  thereof,  and  demanded  a  delivery,  but  defendant 
refused  to  accept  the  money  or  deliver  the  hops  to  the  plaintiffs'  dam- 
age in  the  sum  of  $2,025. 

The  answer  admits  the  contract  as  alleged,  avers  that  the  hops  there- 
in stipulated  to  be  sold  by  the  defendant  amounted  to  14,086  pounds, 
and  for  an  affirmative  defense  alleges  that  prior  to  October  1,  1904, 
the  plaintiffs  sold,  assigned,  and  transferred  all  their  interest  in  the 
contract  in  question  to  T.  Rosenwald  &  Co..  who  have  ever  since  been 
the  owners  and  holders  thereof ;  that  on  October  10,  1904,  the  de- 
fendant had  at  Brooks  station  the  hops  mentioned  in  the  complaint, 
ready  for  delivery,  but  that  neither  Rosenwald  nor  any  one  on  his 
behalf  was  there  ready  and  willing  to  accept  or  pay  for  them;  that 
on  the  day  named  defendant  was  ready  and  willing  to  deliver  the  hops 
as  called  for  by  the  contract  to  the  legal  owner  and  holder  of  such 
contract,  but  that  there  was  no  one  at  Brooks  to  receive  the  hops  or 
pay  for  the  same  on  the  part  of  any  person  whatsoever. 

The  reply  denies  the  material  allegations  of  the  answer  and  affirma- 
tively alleges  that  during  the  year  1904,  Rosenwald  was  a  customer 
of  the  plaintiffs  and  they  had  agreed  to  sell  and  deliver  to  him  in  Oc- 
tober of  that  year  a  large  quantity  of  hops;  that  for  the  purpose  of 
fulfilling  their  contract  with  him,  they  entered  into  the  agreement 
with  the  defendant  set  out  in  the  complaint  and  attempted  to  assign 
the  same  to  Rosenwald,  but  Avhen  he  learned  that  defendant  refused 
to  deliver  the  hops  he  declined  to  accept  the  assignment  and  insisted 
that  plaintiffs  comply  with  their  agreement,  which  they  were  compel- 
led to  and  did  do  at  great  loss  and  damage  to  them. 

Upon  the  issues  thus  joined  the  case  was  tried  to  a  jury.  It  was 
admitted  that  the  hops  in  question  amounted  to  69  bales  and  weighed 
14,086  pounds.  The  evidence  for  the  plaintiffs  tended  to  show  that  on 
October  10,  1904,  they  sent  their  agent.  Earl  Race,  to  defendant's  res- 
idence near  Brooks  to  ascertain  if  the  hops  were  then  in  a  deliverable 
condition,  and  to  receive  them  if  defendant  was  ready  to  deliver ;  that 
Race  arrived  at  defendant's  place  some  time  after  noon  and  told  the 
defendant  that  plaintiffs  were  anxious  to  receive  the  hops,  and  in- 
quired when  he  would  be  ready  to  deliver  and  he  replied  "at  most  any 
time" ;  that  defendant  gave  Race  a  written  order  permitting  him  to 
take  samples  from  the  bales  of  hops  which  were  then  in  the  warehouse 
at  the  station  at  Brooks;   that  Race  went  from  defendant's  residence 


Sec.  4)  DELIVERY    AND    PAYMENT  397 

to  Brooks,  took  samples  from  the  hops  then  in  the  warehouse,  and  re- 
mained there  until  about  4 :30  o'clock  in  the  afternoon  or  thereabouts ; 
that  at  that  time  there  were  only  40-odd  bales  in  the  warehouse.  The 
defendant,  as  a  witness  in  his  own  behalf,  testified  that  he  told  Race 
that  he  was  then  ready  to  deliver  the  hops  to  the  plaintiffs;  that  40- 
odd  bales  were  in  the  warehouse  at  Brooks  station  on  the  morning  of 
the  10th  of  October,  and  had  been  for  some  time  previous;  that  aft- 
erward and  on  that  day  he  caused  29  or  30  bales  more  to  be  hauled  by 
his  workmen  to  the  warehouse,  and  placed  with  the  other  hops ;  that  he 
himself  was  at  the  warehouse  in  the  forenoon  but  did  not  return  again 
that  day,  and  the  bill  of  exceptions  recites  that  there  was  no  evidence 
'"tending  to  show  that  defendant  or  any  person  authorized  by  him  was 
at  the  place  when  the  hops  were  stored  for  the  purpose  of  delivering 
the  same  to  plaintiffs."  There  was  testimony  tending  to  show  that  all 
the  hops  were  baled,  and  in  deliverable  condition  on  October  17th  and 
were  worth  from  30  to  31  cents  a  pound;  and  that  on  that  day  the 
plaintiffs  demanded  the  deliver^^  thereof,  and  tendered  to  the  defend- 
ant the  purchase  price,  but  that  defendant  refused  to  accept  the  money 
or  make  the  delivery. 

The  plaintiffs  requested  the  court  to  instruct  the  jury  that,  "if  the 
defendant  did  not  have  the  hops  at  Brooks  in  time  for  the  plaintiffs  to 
inspect  and  receive  them  by  daylight,  but  that  he  got  them  there  so 
late  that  plaintiff's  would  have  had  to  inspect  and  receive  them  after 
dark  or  at  a  time  so  late  in  the  day  that  it  was  not  possible  to  care- 
fully inspect  and  receive  them  by  the  aid  of  daylight,  then  the  defend- 
ant did  not  comply  with  that  part  of  the  contract  which  required  him 
to  have  the  hops  at  Brooks  by  the  10th  day  of  October,  1904,  and  his 
defense  on  that  issue  cannot  avail  him.''  This  instruction  was  refused, 
and  the  cause  was  thereupon  submitted.  After  the  jury  had  been  out 
for  a  time  they  returned  into  court  and  inquired  whether  it  was  nec- 
essary for  the  defendant  to  be  at  the  warehouse  on  October  10th,  after 
the  last  load  of  hops  had  been  hauled  in  order  to  make  a  complete  de- 
livery. To  this  inquiry  the  court  replied :  "I  will  say  to  you  that  the 
question  presented  is  not  within  the  pleadings.  The  plaintiff's  have 
charged  in  their  complaint  that  the  hops  were  not  in  a  deliverable 
condition,  and  that  is  the  only  ground  that  they  allege  as  excusing 
them  from  paying  or  offering  to  pay  the  money  on  the  10th  and  they 
must  recover  on  that  ground  or  not  at  all.  The  question  which  you 
propound  has  nothing  to  do  with  the  case  under  the  evidence  that  they 
have  off'ered."  The  verdict  was  for  the  defendant,  and  plaintiffs  ap- 
peal. 

Bean.  C.  J.  (after  stating  the  facts).  By  the  terms  of  the  contract 
upon  which  plaintiff's  seek  to  recover,  the  payment  of  the  purchase 
price,  and  the  deliver}-  of  the  hops  were  made  concurrent  acts,  to  be 
performed  at  the  same  time.  The  defendant  was  not  bound  to  deliver 
the  hops  until  they  were  paid  for,  nor  were  plaintiffs  bound  to  pay 
for  them  until  delivered.    Payment  and  delivery  were  to  be  performed 


31)8  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

simultaneously.  Beauchamp  v.  Archer,  58  Cal.  431,  41  Am.  Rep.  266; 
Meeker  v.  Johnson,  5  Wash.  718,  32  Pac.  772,  34  Pac.  148.  But.  be- 
fore the  plaintiff  can  recover  damages  for  a  breach  of  the  contract, 
he  must  show  more  than  the  mere  default  of  the  defendant.  He  must 
show  that  he  was  ready  and  willing  to  perform  his  part  of  the  con- 
tract by  accepting  and  paying  for  the  hops  at  the  time  and  place  ap- 
pointed. The  hops  were  to  be  delivered  at  a  particular  place,  and  if 
the  plaintiffs  were  ready  at  the  appointed  time  and  place  to  perform 
their  part  of  the  contract,  and  the  defendant  did  not  have  the  hops 
there  ready  for  delivery,  the  right  of  action  for  a  breach  of  the  con- 
tract was  complete  without  a  tender  of  the  purchase  price  or  a  demand 
for  the  hops.  Coonley  v.  Anderson,  1  Hill  (N.  Y.)  519;  Neis  v.  Yo- 
cum  (C.  C.)  16  Fed.  168.  But  if  the  defendant,  as  he  alleges,  had 
the  hops  ready  for  delivery  at  the  time  and  place  specified  in  the  con- 
tract, the  plaintiffs  must  show  an  offer  then  to  receive  and  pay  for 
them  before  they  can  maintain  an  action  for  nondelivery. 

Now,  it  is  not  directly  averred  in  the  complaint  that  plaintiffs  were 
ready  and  willing  at  the  time  and  place  specified  to  perform  the  con- 
tract on  their  part,  but  this  omission  is  cured  by  the  allegation  of  the 
answer  that  defendant  had  the  hops  at  Brooks  station  ready  for  de- 
livery at  a  time  stipulated,  but  that  there  was  no  one  present  to  re- 
ceive and  pay  for  them.  This  averment  of  the  answer  is  denied  by 
the  reply,  and  an  issue  thus  made  on  the  plaintiffs'  readiness  and  will- 
ingness to  perform  the  contract  on  their  part.  Consequently  the  de- 
fect in  the  complaint  is  cured  bv  the  answer.  Turner  v.  Corbett,  9 
Or.  79;  Chesapeake  &  Ohio  R.  Co.  v.  Thieman,  96  Ky.  507,  29  S.  W. 
357:  Schenck  v.  Hartford  Fire  Ins.  Co.,  71  Cal.  28,  11  Pac.  807; 
Beckmann  v.  Phoenix  Ins.  Co.,  49  Mo.  App.  604.  In  an  action  of 
this  kind,  readiness  and  willingness  to  perform  by  the  plaintiff,  must 
be  alleged  in  the  complaint,  or  else  it  will  be  had  on  demurrer,  but 
where  such  allegation  is  omitted  and  the  defendant  in  his  answer  by 
wav  of  defense  sets  up  nonperformance  by  the  plaintiff'  of  the  terms 
of  the  contract,  and  the  plaintiff  takes  issue  upon  such  averment,  the 
defect  in  the  complaint  is  helped  out  or  aided  by  the  subsequent  plead- 
ing. This  rule  is  well  illustrated  in  Beckmann  v.  Phoenix  Ins.  Co.,  su- 
pra. That  was  an  action  on  a  policy  of  fire  insurance,  and  the  com- 
plaint failed  to  allege  that  the  plaintiff  complied  with  certain  condi- 
tions precedent  to  his  right  of  action.  The  court  said  the  complaint 
would  have  been  vulnerable  to  a  demurrer,  but  that  the  defendant  hav- 
ing by  way  of  defense  set  up  the  nonperformance  of  the  conditions 
precedent  on  the  part  of  the  plaintiff",  and  plaintiff'  having  taken  issue 
by  reply,  the  defect  was  cured.  The  same  principle  is  applied  in  other 
cases  cited. 

The  questions  for  determination,  therefore,  under  the  pleadings, 
were  (1)  whether  the  plaintiff's  were  ready  and  willing  at  the  time  and 
place  stipulated  to  perform  the  contract  on  their  part  by  accepting  and 
paying  for  the  hops,  and  if  so  (2)  whether  the  defendant  was  ready 


Sec.  4)  DELIVERY    AND   PAYMENT  399 

and  able  at  that  time  to  comply  with  the  contract  b}-  making  the  deliv- 
ery. Upon  this  latter  point  the  instruction  requested  by  the  plaintiffs 
was,  in  our  opinion,  correct  and  should  have  been  given  and  the  in- 
quiry of  the  jury  should  have  been  answered  in  the  affirmative. 
^^'here,  under  the  terms  of  an  executory  contract  of  sale,  the  deliverR^ 
of  bulky  articles,  such  as  hops,  which  require  inspection  and  examins  - 
tion,  is  to  be  made  at  a  particular  place,  tender  must  be  seasonably 
made  so  that  the  vendee,  who  is  bound  to  attend  for  the  purpose  oi 
receiving  the  property,  may  have  an  opportunity  to  examine  and  in- 
spect it  by  daylight  to  ascertain  whether  it  complies  with  the  contract. 
2  Mechem,  Sales,  §  1137;  Croninger  v.  Crocker,  62  N.  Y.  151;  Start- 
up V.  MacDonald,  46  E.  C.  L.  591. 

The  rule  upon  this  subject  is  thus  admirably  stated  by  Baron  Parke, 
in  Startup  v.  MacDonald,  supra,  "A  party  who  is,  by  contract,  to  pay 
money,  or  to  do  a  thing  transitory,  to  another,  anywhere,  on  a  certain 
day,  has  the  whole  of  the  day,  and  if  on  one  of  several  days,  the  whole 
of  the  days,  for  the  performance  of  his  part  of  the  contract ;  and  until 
the  whole  day,  or  the  whole  of  the  last  day,  has  expired,  no  action 
will  lie  against  him  for  the  breach  of  such  contract.  In  such  a  case 
the  party  bound  must  find  the  other,  at  his  peril,  and  within  the  time 
limited,  if  the  other  be  within  the  four  seas ;  and  he  must  do  all  that, 
vvithout  the  concurrence  of  the  other,  he  can  do,  to  make  the  payment, 
or  perform  the  act,  and  that,  at  a  convenient  time  before  midnight, 
such  time  varying  according  to  the  quantum  of  the  payment,  or  na- 
ture of  the  act  to  be  done.  *  *  *  But  where  the  thing  to  be  done 
is  to  be  performed  at  a  certain  place,  on  or  before  a  certain  day,  to 
anotliCr  party  to  a  contract,  there  the  tender  must  be  to  the  other  par- 
ty at  that  place ;  and  as  the  attendance  of  the  other  is  necessary  at 
that  place  to  complete  the  act,  there  the  law,  though  it  requires  that 
other  to  be  present,  is  not  so  unreasonable  as  to  require  him  to  be 
present  for  the  whole  day  where  the  thing  is  to  be  done  on  one  day, 
or  for  the  whole  series  of  days  where  it  is  to  be  done  on  or  before  a 
day  certain;  and,  therefore,  it  fixes  a  particular  part  of  the  day  for 
his  presence ;  and  it  is  enough  if  he  be  at  the  place  at  such  a  conven- 
ient time  before  sunset  on  the  last  day  as  that  the  act  may  be  com- 
pleted by  daylight ;  and  if  the  party  bound  tender  to  the  party  theri, 
if  present,  or,  if  absent,  be  ready  at  the  place  to  perform  the  act  withl 
in  a  convenient  time  before  sunset  for  its  completion,  it  is  sufficient.' 

If,  therefore,  the  defendant  did  not  have  the  hops  at  Brooks  in  time 
for  the  plaintiffs  to  inspect  them  by  daylight  on  the  day  stipulated  for 
the  delivery,  he  did  not  comply  with  his  contract  and  his  act  is  no  de- 
fense in  this  case,  if  in  fact  the  plaintiffs  have  themselves  complied 
with  the  contract  so  as  to  entitle  them  to  sue  the  defendant  for  non- 
delivery. Nor  would  the  mere  transportation  of  the  hops  to  Brooks 
station  be  a  defense  if  the  plaintiffs  were  there  ready  and  willing  to 
accept  them,  unless  the  defendant  or  some  one  representing  him  w^as 
present  to  make  the  delivery  and  to  receive  the  purchase  price.     If 


400  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  4 

both  parties  had  been  present  at  the  time  and  place  agreed  upon  and 
able  to  perform  their  respective  undertakings,  neither  could  have  put 
the  other  in  default  without  offering  to  perform  on  his  part.  Davis  v. 
Adams,  18  Ala.  264.  It  was,  therefore,  incumbent  on  the  plaintiffs, 
if  they  were  ready  and  willing  to  perform  the  contract  and  the  de- 
fendant was  likewise  ready,  to  offer  to  perform  before  they  could 
maintain  an  action  for  a  breach,  but  they  were  not  bound,  as  Judge 
Deady  says  in  Neis  v.  Yocum,  supra,  "to  go  out  into  the  highways  and 
elsewhere  to  find  the  seller"  to  make  such  offer.  It  was  the  duty  of 
the  defendant  if  he  desired  to  perform  his  contract,  to  be  present  at 
the  time  and  place  of  performance  either  in  person  or  by  agent  so 
that  he  could  have  delivered  the  hops,  and  received  the  pay  therefor. 
Judgment  reversed,  and  new  trial  ordered. 


EDWARDS,  HUDMON  &  CO.  v.  MEADOWS. 
(Supreme  Court  of  Alabama,  ISSl.     71  Ala.  42.) 

Action  on  a  promissory  note  given  for  a  threshing  machine  sold  by 
the  plaintiffs  to  the  defendants,  which  at  the  time  of  the  sale  was  in 
the  possession  of  one  Brooks.-^ 

SoMERViLLE,  J.  Where  a  vendor  makes  sale  of  personal  prop- 
erty in  the  custody  of  a  third  person,  who  is  his  bailee,  and  gives  a 
delivery  order  to  the  vendee,  it  has  long  been  settled  that  this  will  not 
amount  to  a  delivery  so  as  to  vest  the  title  in  the  vendee,  until  the  or- 
der is  presented  and  such  third  person  agrees  to  become  the  bailee  of 
V  the  purchaser,  expressly  or  impliedly.  Benj.  on  Sales,  §§  175,  680; 
Bentall  v.  Burn,  3  Barn.  &  C.  423  ;  Barney  v.  Brown.  2  Vt.  374,  19  Am. 
Dec.  720.  It  is  true  that  where  the  custodian  or  bailee  assents  in  ad- 
vance of  the  sale  to  become  the  bailee  of  the  buyer,  this  assent  might 
be  irrevocable  after  the  sale,  and  the  title  would  pass.  A  refusal  by 
the  custodian  afterwards  to  deliver  would  be,  not  a  refusal  to  become 
bailee,  but  to  do  his  duty  as  such  under  the  previous  agreement  which 
constituted  him  bailee  for  the  purchaser.  Benj.  on  Sales,  §  175.  So 
where  goods  are  merely  on  the  premises  of  a  third  person,  who  is  not 
ya  bailee  for  the  owner,  as  in  the  case  of  one  holding  tortious  posses- 
/sion,  delivery  may  be  eft'ected  by  the  vendor's  putting  the  goods  at 
/the  disposal  of  the  vendee,  so  as  to  be,  actually  or  constructively,  un- 
'  der  the  exclusive  dominion  of  the  latter.    Benj.  on  Sales,  §  178. 

Brooks  in  this  case  was  clearly  the  bailee  of  the  appellants,  the  ma- 
chine sold  by  them  to  ?^Ieadows  being  in  his  possession.  The  mere 
giving  of  the  delivery  order,  widiout  more,  did  not  transfer  the  title  of 
the  property,  or  amount  to  a  delivery,  unless  so  intended  mutually  by 
the  parties,  and  such  intention  must  be  evidenced  by  proper  proof, 
circumstantial  or  direct.    When  the  order  was  presented  to  Brooks,  if 

2  5  The  statement  of  facts  is  rewritten  and  part  of  the  opinion  is  omitted. 


Sec.  4)  DELIVERY    AND   PAYMENT  401 

he  had  consented  to  attorn  to  Meadows  so  as  to  become  his  bailee,  the 
delivery  would  have  been  complete. 

And  so  the  delivery  could  have  been  waived  by  the  purchaser,  if  he 
had  voluntarily  consented  to  let  Brooks  retain  the  machine  until  the 
next  day,  or  for  any  definite  space  of  time,  as  an  act  of  free  grace  or 
favor  from  himself.  But  if  Meadows  acted  under  the  moral  coercion 
of  necessity  dictated  by  the  situation,  and  merely  allowed  Brooks  to 
continue  in  custody  as  the  best  arrangement  he  could  make  under  the 
circumstances,  Brooks  would  not  thereby  become  his  bailee,  but  con- 
tinued his  original  custody  as  bailee  of  the  vendors,  Edwards,  Hudmon 
&  Co. 

In  Magee  v.  Billingsley,  3  Ala.  679,  the  giving  of  an  order  for  cot- 
ton stored  in  a  warehouse  and  in  a  deliverable  condition  was  held 
prima  facie  to  constitute  a  delivery.  There  the  warehouseman,  how- 
ever, agreed  to  attorn  to  the  vendee,  and  made  a  memorandum  of  the 
purchaser's  name  on  his  books  in  the  usual  manner  of  such  sales.  Cus- 
tom, too,  would  probably  exert  a  controlling  influence  in  the  case  of 
sales  of  cotton  kept  on  deposit  by  warehousemen,  especially  in  large 
cities,  which  would  take  such  transactions  out  of  the  operation  of  the 
ordinary  rule  governing  other  classes  of  bailees  and  other  kinds  of 
property. 

The  charges  of  the  court  in  relation  to  the  delivery  of  the  property 
in  controversy  were  in  accordance  with  these  views,  and  there  was  no 
error  in  them.     *     *     * 


NORRINGTON  v.  WRIGHT  et  al. 

(Supreme  Court  of  United  States,  1SS5.     115  U.  S.  188,  6  Sup.  Ct.  12,  29  L. 

Ed.  366.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Pennsylvania. 

This  was  an  action  of  assumpsit,  brought  by  Arthur  Norrington, 
a  citizen  of  Great  Britain,  trading  under  the  name  of  A.  Norring- 
ton &  Co.,  against  James  A.  Wright  and  others,  citizens  of  Penn- 
sylvania, trading  under  the  name  of  Peter  Wright  &  Sons,  upon  the 
following  contract : 

"Philadelphia,  January  19,  1880. 

"Sold  to  Messrs.  Peter  Wright  &  Sons,  for  account  of  A.  Nor- 
rington &  Co.,  London :  Five  thousand  (5,000)  tons  old  T  iron  rails, 
for  shipment  from  a  European  port  or  ports,  at  the  rate  of  about 
one  thousand  (1,000)  tons  per  month,  beginning  February,  1880,  but 
whole  contract  to  be  shipped  before  August  1,  1880,  at  forty-five 
dollars  ($45.00)  per  ton  of  2240  lbs.  custom-house  weight,  ex  ship 
Philadelphia.  Settlement,  cash,  on  presentation  of  bills  accompanied 
by  custom-house  certificate  of  weight.  Sellers  to  notify  buyers  of 
Wood  w.  Sales — 26 


402  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

shipments  with  vessels'  names  as  soon  as  known  by  them.  Sellers 
not  to  be  compelled  to  replace  any  parcel  lost  after  shipment.  Sell- 
ers, when  possible,  to  secure  to  buyers  right  to  name  dis'charging 
berth  of  vessels  at  Philadelphia. 

"Edward  J.  Etting,  Metal  Broker." 

The  declaration  contained  three  counts.  The  first  count  alleged 
the  contract  to  have  been  for  the  sale  of  about  5,000  tons  of  T  iron 
rails,  to  be  shipped  at  the  rate  of  about  1,000  tons  a  month,  begin- 
ning in  February,  and  ending  in  July,  1880.  The  second  count  set 
forth  the  contract  verbatim.  Each  of  these  two  counts  alleged  that 
the  plaintiffs  in  February,  March,  April,  May,  June,  and  July  shipped 
the  goods  at  the  rate  of  about  1,000  tons  a  month,  and  notified  the 
shipments  to  the  defendants;  and  further  alleged  the  due  arrival 
of  the  goods  at  Philadelphia,  the  plaintiff's  readiness  to  deliver  the 
goods  and  bills  thereof,  with  custom-house  certificates  of  weight,  ac- 
cording to  the  contract,  and  the  defendants'  refusal  to  accept  them. 
The  third  count  differed  from  the  second  only  in  averring  that  40C 
tons  were  shipped  by  the  plaintiff  in  February  and  accepted  by  the 
defendants,  and  that  the  rest  was  shipped  by  the  plaintiffs,  at  the 
rate  of  about  1,000  tons  a  month,  in  March,  April,  May,  June,  and 
July.  The  defendants  pleaded  non  assumpsit.  The  material  facts 
proved  at  the  trial  were  as  follows : 

The  plaintiff  shipped  from  various  European  ports  400  tons  by 
one  vessel  in  the  last  part  of  February,  885  tons  by  two  vessels  in 
March,  1,571  tons  by  five  vessels  in  April,  850  tons  by  three  vessels 
in  May,  1,000  tons  by  two  vessels  in  June,  and  300  tons  by  one  ves- 
sel in  July,  and  notified  to  the  defendants  each  shipment. 

The  defendants  received  and  paid  for  the  February  shipment  upon 
its  arrival  in  March,  and  in  April  gave  directions  at  what  wharves 
the  March  shipments  should  be  discharged  on  their  arrival ;  but  on 
May  14th,  about  the  time  of  the  arrival  of  the  March  shipments, 
and  having  been  then  for  the  first  time  informed  of  the  amounts 
shipped  in  February,  March,  and  April,  they  gave  Etting  written 
notice  that  they  should  decline  to  accept  the  shipments  made  in. 
March  and  April,  because  none  of  them  were  in  accordance  with 
the  contract;  and  in  answer  to  a  letter  from  him  of  May  16th, 
wrote  him  on  May  17th,  as  follows :  "We  are  advised  that  what  has 
occurred  does  not  amount  to  an  acceptance  of  the  iron  under  the  cir- 
cumstances, and  the  terms  of  the  contract.  You  had  a  right  to  de- 
liver in  parcels,  and  we  had  a  right  to  expect  the  stipulated  quantity 
would  be  delivered  until  the  time  was  up  in  which  that  was  possible. 
Both  delivering  and  receiving  were  thus  far  conditional  on  their 
being  thereafter  a  complete  delivery  in  due  time  and  of  the  stipulated 
article.  On  the  assumption  that  this  time  had  arrived,  and  that  you 
had  ascertained  that  you  did  not  intend  to,  or  could  not,  make  any 
further  deliveries  for  the  February  and  March  shipments,  we  gave 
you   the  notice  that   we   declined   accepting  those   deliveries.     As   to 


Sec.  4)  DELIVERY    AND   PAYMENT  403 

April,  it  is  too  plain,  we  suppose,  to  require  any  remark.  If  we  are 
mistaken  as  to  our  obligation  for  the  February  and  March  shipments, 
of  course  we  must  abide  the  consequences ;  but  if  we  are  right,  you 
have  not  performed  your  contract,  as  you  certainly  have  not  for  the 
April  shipments.  There  is  then  the  very  serious  and  much  debated 
question,  as  we  are  advised,  whether  the  failure  to  make  the  stip- 
ulated shipments  in  February  or  March  has  absolved  us  from  the 
contract.  If  it  does,  we  of  course  will  avail  ourselves  of  this  ad- 
vantage." 

On  May  18th  Etting  wrote  to  the  defendants,  insisting  on  their 
liability  for  both  past  and  future  shipments,  and  saying,  among 
other  things :  "In  respect  to  the  objection  that  there  had  not  been 
a  complete  delivery  in  due  time  of  the  stipulated  article,  I  beg  to 
call  your  attention  to  the  fact  that  while  the  contract  is  for  five 
thousand  tons,  it  expressly  stipulates  that  deliveries  may  be  made 
during  six  months,  and  that  they  are  only  to  be  at  the  rate  of  about 
one  thousand  tons  per  month."  "As  to  April,  while  it  seems  to  me 
'too  plain  to  require  any  remark,'  I  do  not  see  how  it  can  seem  so 
to  you,  unless  you  intend  to  accept  the  rails.  If  you  object  to  tak- 
ing all  three  shipments  made  in  that  month,  I  shall  feel  authorized  to 
deliver  only  tvv'o  of  the  cargoes,  or,  for  that  matter,  to  make  the 
delivery  of  precisely  one  thousand  tons.  But  I  think  I  am  entitled 
to  know  definitely  from  .you  whether  you  intend  to  reject  the  April 
shipments,  and,  if  so,  upon  what  ground,  and  also  whether  you  are 
decided  to  reject  the  remaining  shipments  under  the  contract.  You 
say  in  your  last  paragraph  that  you  shall  avail  yourselves  of  the 
advantage,  if  you  are  absolved  from  the  contract ;  but,  as  you  seem 
to  be  in  doubt  whether  you  can  set  up  that  claim  or  not,  I  should 
like  to  know  definitely  what  is  your  intention." 

On  May  19th  the  defendants  replied :  "We  do  not  read  the  con- 
tract as  you  do.  We  read  it  as  stipulating  for  monthly  shipments 
of  about  one  thousand  tons,  beginning  in  February,  and  that  the 
six  months'  clause  is  to  secure  the  completion  of  whatever  had  fallen 
short  in  the  five  months.  As  to  the  meaning  of  'about,'  it  is  settled 
as  well  as  such  a  thing  can  be ;  and  certainly  neither  the  February, 
March,  nor  April  shipments  are  within  the  limits.  As  to  the  proposal 
to  vary  the  notices  for  April  shipments,  we  do  not  think  you  can 
do  this.  The  notice  of  the  shipments,  as  soon  as  known,  you  were 
bound  to  give,  and  cannot  afterwards  vary  it  if  they  do  not  con- 
form to  the  contract.  Our  right  to  be  notified  immediately  that 
the  shipments  were  known  is  as  material  a  provision  as  any  other, 
nor  can  it  be  changed  now  in  order  to  make  that  a  performance 
which  was  no  performance  within  the  time  required."  "You  ask 
us  to  determine  whether  we  will  or  will  not  object  to  recei\e  fur- 
ther shipments  because  of  past  defaults.  We  tell  you  we  will  if  we 
are  entitled  to  do  so,  and  will  not  if  we  are  not  entitled  to  do  so. 
We  do  not  think  you  have  the  right  to  compel  us  to  decide  a  disputed 


404  OBLIGATIONS    OF    SELLER    AND    BUYER  (Cll.  4 

question  of  law  to  relieve  you  from  the  risk  of  deciding  it  yourself. 
You  know  quite  as  well  as  we  do  what  is  the  rule  and  its  uncer- 
tainty of  application." 

On  June  10th  Etting  offered  to  the  defendants  the  alternative  of 
delivering  to  them  one  thousand  tons  strict  measure  on  account  of 
the  shipments  in  April.     This  offer  they  immediately  declined. 

On  June  15th  Etting  wrote  to  the  defendants  that  two  cargoes, 
amounting  to  221  tons,  of  the  April  shipments,  and  two  cargoes, 
amounting  to  650  tons,  of  the  May  shipments,  (designated  by  the 
names  of  the  vessels,)  had  been  erroneously  notified  to  them,  and 
that  about  900  tons  had  been  shipped  by  a  certain  other  vessel  on 
account  of  the  May  shipments.  On  the  same  day  the  defendants 
replied  that  the  notification  as  to  April  shipments  could  not  be  cor- 
rected at  this  late  date,  and  after  the  terms  of  the  contract  had  long 
since  been  broken. 

From  the  date  of  the  contract  to  the  time  of  its  rescission  by  the 
defendants,  the  market  price  of  such  iron  was  lower  than  that  stip- 
ulated in  the  contract,  and  was  constantly  falling.  After  the  ar- 
rival of  the  cargoes,  and  their  tender  and  refusal,  they  were  sold 
by  Etting,  with  the  consent  of  the  defendants,  for  the  benefit  of 
whom  it  might  concern. 

At  the  trial  the  plaintiff  contended  (1)  that  under  the  contract 
he  had  six  months  in  which  to  ship  the  5,000  tons,  and  any  deficiency 

the  earlier  months  could  be  made  up  subsequently,  provided  that 
the  defendants  could  not  be  required  to  take  more  than  1,000  tons  in 
my  one  month ;  (2)  that,  if  this  was  not  so,  the  contract  was  a  divis- 
'ible  contract,  and  the  remedy  of  the  defendants  for  a  default  in  any 
month  was  not  by  rescission  of  the  whole  contract,  but  only  by  de- 
duction of  the  damages  caused  by  the  delays  in  the  shipments  on 
the  part  of  the  plaintiff. 

But  the  court  instructed  the  jury  that  if  the  defendants,  at  the 
time  accepting  the  delivery  of  the  cargo  paid  for,  had  no  notice  of 
the  failure  of  the  plaintiff  to  ship  about  1,000  tons  in  the  month 
of  February,  and  immediately  upon  learning  that  fact  gave  notice 
of  their  intention  to  rescind,  the  verdict  should  be  for  them. 

The  plaintiff  excepted  to  this  instruction,  and,  after  verdict  and 
judgment  for  the  defendants,  sued  out  this  writ  of  error. 

Gray,  J.  (after  stating  the  facts  as  above).  In  the  contracts  of 
[merchants,  time  is  of  the  essence.  The  time  of  shipment  is  the  usual 
land  convenient  means  of  fixing  the  probable  time  of  arrival,  with  a 
'view  of  providing  funds  to  pay  for  the  goods,  or  of  fulfilling  con- 
tracts with  third  persons.  A  statement  descriptive  of  the  subject- 
matter,  or  of  some  material  incident,  such  as  the  time  or  place  of 
shipment,  is  ordinarily  to  be  regarded  as  a  warranty  in  the  sense 
in  which  that  term  is  used  in  insurance  and  maritime  law,  that  is 
to  say.  a  condition  precedent  upon  the  failure  or  non-performance 
of    which   the   party   aggrieved   may    repudiate   the    whole   contract. 


Sec.  4)  DELIVERY    AND   PAYMENT  405 

Behn  v.  Burness,  3  Best  &  S.  751 ;  Bowes  v.  Shand,  2  App.  Cas.  455: 
Lowber  v.  Bangs,  2  Wall.  728,  17  L.  Ed.  768;  Davison  v.  Von 
Lingen,  113  U.  S.  40,  5  Sup.  Ct.  346,  28  L.  Ed.  885. 

The  contract  sued  on  is  a  single  contract  for  the  sale  and  pur- 
chase of  5,000  tons  of  iron  rails,  shipped  from  a  European  port  or 
ports  for  Philadelphia.  The  subsidiary  provisions  as  to  shipping 
in  different  months,  and  as  to  paying  for  each  shipment  upon  its  de- 
livery, do  not  split  up  the  contract  into  as  many  contracts  as  there 
shall  be  shipments,  or  deliveries  of  so  many  distinct  quantities  of 
iron.  Mersey  S.  &  I.  Co.  v.  Naylor,  9  App.  Cas.  434,  439.  The 
further  provision  that  the  sellers  shall  not  be  compelled  to  replace 
any  parcel  lost  after  shipment,  simply  reduces,  in  the  event  of  such 
a  loss,  the  quantity  to  be  delivered  and  paid  for. 

The  times  of  shipment,  as  designated  in  the  contract,  are  "at  the 
rate  of  about  1,000  tons  per  month,  beginning  February,  1880,  but 
whole  contract  to  be  shipped  before  August  1,  1880."  These  words 
are  not  satisfied  by  shipping  one-sixth  part  of  the  5,000  tons,  or 
about  833  tons,  in  each  of  the  six  months  which  begin  with  February 
and  end  with  July.  But  they  require  about  1,000  tons  to  be  shipped 
in  each  of  the  five  months  from  February  to  June  inclusive,  and  al- 
low no  more  than  slight  and  unimportant  deficiencies  in  the  ship- 
ments during  those  months  to  be  made  up  in  the  month  of  July. 
The  contract  is  not  one  for  the  sale  of  a  specific  lot  of  goods,  identi- 
fied by  independent  circumstances, — such  as  all  those  deposited  in 
a  certain  warehouse,  or  to  be  shipped  in  a  particular  vessel,  or  that 
may  be  manufactured  by  the  seller,  or  may  be  required  for  use  by 
the  buyer,  in  a  certain  mill, — in  which  case  the  mention  of  the  quan- 
tity, accompanied  by  the  qualification  of  "about,"  or  "more  or  less," 
is  regarded  as  a  mere  estimate  of  the  probable  amount,  as  to  which 
good  faith  is  all  that  is  required  of  the  party  making  it.  But  the 
contract  before  us  comes  within  the  general  rule :  "When  no  such, 
independent  circumstances  are  referred  to,  and  the  engagement  isl 
to  furnish  goods  of  a  certain  quality  or  character  to  a  certain  amount,! 
the  quantity  specified  is  material,  and  governs  the  contract.  The' 
addition  of  the  qualifying  words  'about,'  'more  or  less,'  and  the  like, 
in  such  cases,  is  only  for  the  purpose  of  providing  against  accidental 
variations  arising  from  slight  and  unimportant  excesses  or  deficiencies 
in  number,  measure,  or  weight."  Brawley  v.  United  States,  96  U. 
S.  168,  171,  172,  24  L.  Ed.  622. 

The  seller  is  bound  to  deliver  the  quantity  stipulated,  and  has  no 
right  either  to  compel  the  buyer  to  accept  a  less  quantity,  or  to  re- 
quire him  to  select  part  out  of  a  greater  quantity ;  and  when  the 
goods  are  to  be  shipped  in  certain  proportions  monthly,  the  seller's 
failure  to  ship  the  required  quantity  in  the  first  month  gives  the 
buyer  the  same  right  to  rescind  the  whole  contract  that  he  would 
have  had  if  it  had  been  agreed  that  all  the  goods  should  be  deliv- 
ered at  once. 


406  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

The  plaintiff,  instead  of  shipping  about  1,000  tons  in  February  and 
about  1,000  tons  in  March,  as  stipulated  in  the  contract,  shipped 
only  400  tons  in  February,  and  885  tons  in  March.  His  failure  to 
fulfill  the  contract  on  his  part  in  respect  to  these  first  two  install- 
ments justified  the  defendants  in  rescinding  the  whole  contract, 
provided  they  distinctly  and  seasonably  asserted  the  right  of  rescis- 
sion. 

The  defendants,  immediately  after  the  arrival  of  the  March  ship- 
ments, and  as  soon  as  they  knew  that  the  quantities  which  had  been 
shipped  in  February  and  in  March  were  less  than  the  contract  called 
for,  clearly  and  positively  asserted  the  right  to  rescind,  if  the  law 
entitled  them  to  do  so.  Their  previous  acceptance  of  the  single 
cargo  of  400  tons  shipped  in  February  was  no  waiver  of  this  right, 
because  it  took  place  without  notice  or  means  of  knowledge  that 
the  stipulated  quantity  had  not  been  shipped  in  February.  The  price 
paid  by  them  for  that  cargo  being  above  the  market  value,  the  plain- 
tiff suffered  no  injury  by  the  omission  of  the  defendants  to  return 
the  iron ;  and  no  reliance  was  placed  on  that  omission  in  the  cor- 
respondence between  the  parties. 

The  case  wholly  differs  from  that  of  Lyon  v.  Bertram,  20  How. 
149,  15  L.  Ed.  847,  in  which  the  buyer  of  a  specific  lot  of  goods  ac- 
cepted and  used  part  of  them  with  full  means  of  previously  ascer- 
taining whether  they  conformed  to  the  contract. 

The  plaintiff,  denying  the  defendants'  right  to  rescind,  and  assert- 
ing that  the  contract  was  still  in  force,  was  bound  to  show  such  per- 
formance on  his  part  as  entitled  him  to  demand  performance  on  their 
part,  and,  having  failed  to  do  so,  cannot  maintain  this  action. 

For  these  reasons  we  are  of  opinion  that  the  judgment  below 
should  be  affirmed.  But  as  much  of  the  argument  at  the  bar  was 
devoted  to  a  discussion  of  the  recent  English  cases,  and  as  a  diversity 
in  the  law,  as  administered  on  the  two  sides  of  the  Atlantic,  con- 
cerning the  interpretation  and  effect  of  commercial  contracts  of  this 
kind,  is  greatly  to  be  deprecated,  it  is  proper  to  add  that  upon  a  care- 
ful examination  of  the  cases  referred  to  they  do  not  appear  to  us 
to  establish  any  rule  inconsistent  with  our  conclusion. 

In  the  leading  case  of  Hoare  v.  Rennie,  5  Hurl.  &  N.  19,  which 
was  an  action  upon  a  contract  of  sale  of  667  tons  of  bar  iron,  to  be 
shipped  from  Sweden  in  June,  July,  August,  and  September,  and 
in  about  equal  portions  each  month,  at  a  certain  price  payable  on 
delivery,  the  declaration  alleged  that  the  plaintiffs  performed  all 
things  necessary  to  entitle  them  to  have  the  contract  performed  by 
the  defendants,  and  were  ready  and  willing  to  perform  the  contract 
on  their  part,  and  in  June  shipped  a  certain  portion  of  the  iron,  and 
within  a  reasonable  time  afterwards  offered  to  deliver  to  the  de- 
fendants the  portion  so  shipped,  but  the  defendants  refused  to  re- 
ceive it,  and  gave  notice  to  the  plaintiff's  that  they  would  not  ac- 
cept the  rest.     The  defendants  pleaded  that  the  shipment  in  June 


Sec.  4)  DELIVERY    AND   PAYMENT  407 

was  of  about  20  tons  only,  and  that  the  plaintiffs  failed  to  com- 
plete the  shipment  for  that  month  according  to  the  contract.  Upon 
demurrer  to  the  pleas,  it  was  argued  for  the  plaintiffs  that  the  ship- 
ment of  about  one-fourth  of  the  iron  in  each  month  was  not  a  con- 
dition precedent,  and  that  the  defendants'  only  remedy  for  a  failure 
to  ship  that  quantity  was  by  a  cross-action.  But  judgment  was 
given  for  the  defendants,  Chief  Baron  Pollock  saying:  "The  de- 
fendants refused  to  accept  the  first  shipment,  because,  as  they  say, 
it  was  not  a  performance,  but  a  breach  of  the  contract.  Where  par- 
ties have  made  an  agreement  for  themselves,  the  courts  ought  not 
to  make  another  for  them.  Here  they  say  that,  in  the  events  that 
have  happened,  one-fourth  shall  be  shipped  in  each  month,  and  we 
cannot  say  that  they  meant  to  accept  any  other  quantity.  At  the 
outset  the  plaintiffs  failed  to  tender  the  quantity  according  to  the 
contract, — they  tendered  a  much  less  quantity.  The  defendants  had 
a  right  to  say  that  this  was  no  performance  of  the  contract,  and  they 
were  no  more  bound  to  accept  the  short  quantity  than  if  a  single 
delivery  had  been  contracted  for.  Therefore  the  pleas  are  an  an- 
swer to  the  action."  5  Hurl.  &  N.  28.  So  in  Coddington  v.  Paleo- 
logo,  L.  R.  2  Exch.  193,  while  there  was  a  division  of  opinion  upon 
the  question  whether  a  contract  to  supply  goods,  "delivering  on  April 
17th,  complete  8th  May,"  bound  the  seller  to  begin  delivering  on 
April  17th,  all  the  judges  agreed  that  if  it  did,  and  the  seller  made 
no  delivery  on  that  day,  the  buyer  might  rescind  the  contract. 

On  the  other  hand,  in  Simpson  v.  Crippin,  L.  R.  8  Q.  B.  14,  under 
a  contract  to  supply  from  6,000  to  8,000  tons  of  coal,  to  be  taken 
by  the  buyer's  wagons  from  the  seller's  colliery  in  equal  monthly 
quantities  for  12  months,  the  buyer  sent  wagons  for  only  150  tons 
during  the  first  month;  and  it  was  held  that  this  did  not  entitle  the 
seller  to  annul  the  contract  and  decline  to  deliver  any  more  coal, 
but  that  his  only  remedy  was  by  an  action  for  damages.  And  in 
Brandt  v.  Lawrence,  1  Q.  B.  Div.  344,  in  which  the  contract  was 
for  the  purchase  of  4,500  quarters,  10  per  cent,  more  or  less,  of  Rus- 
sian oats,  "shipment  by  steamer  or  steamers  during  February,"  or, 
in  case  of  ice  preventing  shipment,  then  immediately  upon  the  open- 
ing of  navigation,  and  1,139  quarters  were  shipped  by  one  steamer 
in  time,  and  3,361  quarters  were  shipped  too  late,  it  was  held  that 
the  buyer  was  bound  to  accept  the  1,139  quarters,  and  was  liable 
to  an  action  by  the  seller  for  refusing  to  accept  them. 

Such  being  the  condition  of  the  law  of  England  as  declared  in 
the  lower  courts,  the  case  of  Bowes  v.  Shand,  after  conflicting  deci- 
sions in  the  queen's  bench  division  and  the  court  of  appeal,  was  final- 
ly determined  by  the  house  of  lords.  1  Q.  B.  Div.  470;  2  Q.  B. 
Div.  112;  2  App.  Cas.  455.  In  that  case,  two  contracts  were  made 
in  London,  each  for  the  sale  of  300  tons  of  "Madras  rice,  to  be  ship- 
ped at  Madras  or  coast  for  this  port  during  the  months  of  March 
^°Vor  April,  1874,  per  Rajah  of  Cochin."     The  600  tons  filled  8,200 


408  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

bags,  of  which  7,120  bags  werfe  put  on  board,  and  bills  of  lading 
signed  in  February;  and  for  the  rest,  consisting  of  1,030  bags  put 
jn  board  in  February,  and  50  in  March,  the  bill  of  lading  was  signed 
in  March.  At  the  trial  of  an  action  by  the  seller  against  the  buyer 
for  refusing  to  accept  the  cargo,  evidence  was  given  that  rice  ship- 
ped in  February  would  be  the  spring  crop,  and  quite  as  good  as  rice 
shipped  in  March  or  April.  Yet  the  house  of  lords  held  that  the 
action  could  not  be  maintained,  because  the  meaning  of  the  contract, 
as  apparent  upon  its  face,  was  that  all  the  rice  must  be  put  on  board 
in  March  and  April,  or  in  one  of  those  months. 

In  the  opinions  there  delivered  the  general  principles  underlying 
this  class  of  cases  are  most  clearly  and  satisfactorily  stated.  It  will 
be  sufficient  to  quote  a  few  passages  from  two  of  those  opinions. 

Lord  Chancellor  Cairns  said :  "It  does  not  appear  to  me  to  be  a 
question  for  your  lordships,  or  for  any  court,  to  consider  whether 
that  is  a  contract  which  bears  upon  the  face  of  it  some  reason,  some 
explanation,  why  it  was  made  in  that  form,  and  why  the  stipulation 
is  made  that  the  shipment  should  be  during  these  particular  months. 
It  is  a  mercantile  contract,  and  merchants  are  not  in  the  habit  of 
placing  upon  their  contracts  stipulations  to  which  they  do  not  attach 
some  value  and  importance."  2  App.  Cas.  463.  "If  it  be  admitted 
that  the  literal  meaning  would  imply  that  the  whole  quantity  must 
be  put  on  board  during  a  specified  time,  it  is  no  answer  to  that  literal 
meaning, — it  is  no  observation  which  can  dispose  of,  or  get  rid  of, 
or  displace,  that  literal  meaning, — to  say  that  it  puts  an  additional 
burden  on  the  seller  without  a  corresponding  benefit  to  the  pur- 
chaser; that  is  a  matter  of  which  the  seller  and  the  purchaser  are 
the  best  judges.  Nor  is  it  any  reason  for  saying  that  it  would  be  a 
means  by  which  purchasers,  without  any  real  cause,  would  fre- 
quently obtain  an  excuse  for  rejecting  contracts  when  prices  had 
dropped.  The  non-fulfillment  of  any  term  in  any  contract  is  a  means 
by  which  a  purchaser  is  able  to  get  rid  of  the  contract  when  prices 
have  dropped;  but  that  is  no  reason  why  a  term  which  is  found  in 
a  contract  should  not  be  fulfilled."  Pages  465,  466.  "It  was  sug- 
gested that  even  if  the  construction  of  the  contract  be  as  I  have 
stated,  still  if  the  rice  was  not  put  on  board  in  the  particular  months, 
that  would  not  be  a  reason  which  would  justify  the  appellants  in 
having  rejected  the  rice  altogether,  but  that  it  might  afford  a  ground 
for  a  cross-action  by  them  if  they  could  show  that  any  particular 
damage  resulted  to  them  from  the  rice  not  having  been  put  on  board 
in  the  months  in  question.  My  lords,  I  cannot  think  that  there  is 
any  foundation  whatever  for  that  argument.  If  the  construction  of 
the  contract  be  as  I  have  said,  that  it  bears  that  the  rice  is  to  be  put 
on  board  in  the  months  in  question,  that  is  part  of  the  description 
of  the  subject-matter  of  what  is  sold.  What  is  sold  is  not  300  tons 
of  rice  in  gross  or  in  general.  It  is  300  tons  of  Madras  rice  to  be 
put  on  board  at  Madras  during  the  particular  months."     "The  plain- 


Sec.  4)  DELIVERY    AND   PAYMENT  409 

tiff,  who  sues  upon  that  contract,  has  not  launched  his  case  until  he 
has  shown  that  he  has  tendered  that  thing  which  has  been  contracted 
for,  and  if  he  is  unable  to  show  that,  he  cannot  claim  any  damages 
for  the  non-fulfillment  of  the  contract."     Pages  467,  468. 

Lord  Blackburn  said :  "If  the  description  of  the  article  tendered 
is  different  in  any  respect,  it  is  not  the  article  bargained  for,  and 
the  other  party  is  not  bound  to  take  it.  I  think  in  this  case  what 
the  parties  bargained  for  was  rice,  shipped  at  Madras  or  the  coast 
of  Madras.  Equally  good  rice  might  have  been  shipped  a  little  to 
the  north  or  a  little  to  the  south  of  the  coast  of  Madras.  I  do  not 
quite  know  what  the  boundary  is,  and  probably  equally  good  rice 
might  have  been  shipped  in  February  as  was  shipped  in  March,  or 
equally  good  rice  might  have  been  shipped  in  May  as  was  shipped 
in  April,  and  I  dare  say  equally  good  rice  might  have  been  put  on 
board  another  ship  as  that  which  was  put  on  board  the  Rajah  of 
Cochin.  But  the  parties  have  chosen,  for  reasons  best  known  to 
themselves,  to  say :  We  bargain  to  take  rice,  shipped  in  this  par- 
ticular region,  at  that  particular  time,  on  board  that  particular  ship ; 
and  before  the  defendants  can  be  compelled  to  take  anything  in  ful- 
fillment of  that  contract  it  must  be  shown  not  merely  that  it  is  equally 
good,  but  that  it  is  the  same  article  as  they  have  bargained  for,  other- 
wise they  are  not  bound  to  take  it."    2  App.  Cas.  480,  481. 

Soon  after  that  decision  of  the  house  of  lords,  two  cases  were 
determined  in  the  court  of  appeal.  In  Reuter  v.  Sala,  4  C.  P.  Div. 
239,  under  a  contract  for  the  sale  of  "about  25  tons  (more  or  less) 
black  pepper,  October  and/or  November  shipment,  from  Penang  to 
London,  the  name  of  the  vessel  or  vessels,  marks,  and  full  particulars 
to  be  declared  to  the  buyer  in  writing  within  60  days  from  date  of 
bill  of  lading,"  the  seller,  within  the  60  days,  declared  25  tons  by  a 
particular  vessel,  of  which  only  20  tons  were  shipped  in  November, 
and  five  tons  in  December ;  and  it  was  held  that  the  buyer  had  the 
right  to  refuse  to  receive  any  part  of  the  pepper.  In  Honck  v. 
Muller,  7  Q.  B.  Div.  92,  under  a  contract  for  the  sale  of  2,000  tons 
of  pig-iron,  to  be  delivered  to  the  buyer  free  on  board  at  the  mak- 
er's wharf  "in  November,  or  equally  over  November,  December, 
and  January  next,"  the  buyer  failed  to  take  any  iron  in  November, 
but  demanded  delivery  of  one-third  in  December  and  one-third  in 
January;  and  it  was  held  that  the  seller  was  justified  in  refusing 
to  deliver,  and  in  giving  notice  to  the  buyer  that  he  considered  the 
contract  as  canceled  by  the  buyer's  not  taking  any  iron  in  November. 

The  plaintiff  in  the  case  at  bar  greatly  relied  on  the  very  recent 
decision  of  the  house  of  lords  in  Mersey  Co.  v.  Naylor,  9  App.  Cas. 
434,  affirming  the  judgment  of  the  court  of  appeal  in  9  Q.  B.  Div. 
648,  and  following  the  decision  of  the  court  of  common  pleas  in 
Freeth  v.  Burr,  L.  R.  9  C.  P.  208. 

But  the  point  there  decided  was  that  the  failure  of  the  buyer  tc 
pay   for  the  first  installment  of  the  goods  upon   delivery   does   not. 


410  OBLIGATIONS    OF    SELLER    AND    BUYER  (Cll.  4 

unless  the  circumstances  evince  an  intention  on  his  part  to  be  no 
longer  bound  by  the  contract,  entitle  the  seller  to  rescind  the  contract, 
and  to  decline  to  make  further  deliveries  under  it.  And  the  grounds 
of  the  decision,  as  stated  by  Lord  Chancellor  Selborne  in  moving 
judgment  in  the  house  of  lords,  are  applicable  only  to  the  case  of 
a  failure  of  the  buyer  to  pay  for,  and  not  to  that  of  a  failure  of  the 
seller  to  deliver,  the  first  installment. 

The  Lord  Chancellor  said :  "The  contract  is  for  the  purchase  of 
5,000  tons  of  steel  blooms  of  the  company's  manufacture ;  there- 
fore, it  is  one  contract  for  the  purchase  of  that  quantity  of  steel 
blooms.  No  doubt,  there  are  subsidiary  terms  in  the  contract,  as 
to  the  time  of  delivery, — 'delivery  1,000  tons  monthly,  commencing 
January  next,' — and  as  to  the  time  of  payment, — 'payment  net  cash 
within  three  days  after  receipt  of  shipping  documents,' — ^but  that 
does  not  split  up  the  contract  into  as  many  contracts  as  there  shall 
be  deliveries  for  the  purpose  of.  so  many  distinct  quantities  of  iron. 
It  is  quite  consistent  with  the  natural  meaning  of  the  contract  that 
it  is  to  be  one  contract  for  the  purchase  of  that  quantity  of  iron  to 
be  delivered  at  those  times  and  in  that  manner,  and  for  which  pay- 
ment is  so  to  be  made.  It  is  perfectly  clear  that  no  particular  pay- 
ment can  be  a  condition  precedent  of  the  entire  contract,  because 
the  delivery  under  the  contract  was  most  certainly  to  precede  pay- 
ment; and  that  being  so,  I  do  not  see  how,  without  express  words, 
it  can  possibly  be  made  a  condition  precedent  to  the  subsequent  ful- 
fillment of  the  unfulfilled  part  of  the  contract  by  the  delivery  of  the 
undelivered  steel."     9  App.  Cas.  439. 

Moreover,  although  in  the  court  of  appeal  dicta  were  uttered  tend- 
ing to  approve  the  decision  in  Simpson  v.  Crippin,  and  to  disparage 
the  decisions  in  Hoare  v.  Rennie  and  Honck  v.  Muller,  above  cited, 
yet  in  the  house  of  lords  Simpson  v.  Crippin  was  not  even  referred 
to,  and  Lord  Blackburn,  who  had  given  the  leading  opinion  in  that 
case,  as  well  as  Lord  Bramwell,  who  had  delivered  the  leading  opin- 
ion in  Honck  v.  Muller,  distinguished  Hoare  v.  Rennie  and  Honck 
V.  Muller  from  the  case  in  judgment.    9  App.  Cas.  444,  446. 

Upon  a  review  of  the  English  decisions,  the  rule  laid  down  in  the 
earlier  cases  of  Hoare  v.  Rennie  and  Coddington  v.  Paleologo,  as  well 
as  in  the  later  cases  of  Reuter  v.  Sala  and  Honck  v.  Aluller,  appears 
to  us  to  be  supported  by  a  greater  weight  of  authority  than  the  rule 
stated  in  the  intermediate  cases  of  Simpson  v.  Crippin  and  Brandt  v. 
Lawrence,  and  to  accord  better  with  the  general  principles  affirmed  by 
the  house  of  lords  in  Bowes  v.  Shand,  while  it  in  no  wise  contravenes 
the  decision  of  that  tribunal  in  Mersey  Co.  v.  Naylor. 

In  this  country  there  is  less  judicial  authority  upon  the  question. 
The  two  cases  most  nearly  in  point  that  have  come  to  our  notice  are 
Hill  V.  Blake,  97  N.  Y.  216,  which  accords  with  Bowes  v.  Shand  and 
King  Philip  Mills  v.  Slater,  12  R.  I.  82,  34  Am.  Rep.  603,  which  ap- 
proves and  follows  Hoare  v.  Rennie.    The  recent  cases  in  the  supreme 


Sec.  4)  DELIVERY    AND   PAYMENT  411 

court  of  Pennsylvania,  cited  at  the  bar,  support  no  other  conclusion. 
In  Shinn  v.  Bodine,  60  Pa.  182,  100  Am.  Dec.  560,  the  point  decided 
was  that  a  contract  for  the  purchase  of  800  tons  of  coal  at  a  certain 
price  per  ton,  "coal  to  be  delivered  on  board  vessels  as  sent  for  during 
the  months  of  August  and  September,"  was  an  entire  contract,  under 
which  nothing  was  payable  until  delivery  of  the  whole,  and  therefore 
the  seller  had  no  right  to  rescind  the  contract  upon  a  refusal  to  pay 
for  one  cargo  before  that  time.  In  Morgan  v.  McKee,  77  Pa.  228 
and  in  Scott  v.  Kittanning  Coal  Co.,  89  Pa.  231,  33  Am.  Rep.  753,  the 
buyer's  right  to  rescind  the  whole  contract  upon  the  failure  of  the 
seller  to  deliver  one  installment  was  denied,  only  because  that  right 
had  been  waived,  in  the  one  case  by  unreasonable  delay  in  asserting 
it,  and  in  the  other  by  having  accepted,  paid  for,  and  used  a  previous 
installment  of  the  goods.  The  decision  of  the  supreme  judicial  court 
of  Massachusetts  in  Winchester  v.  Newton,  2  Allen,  492,  resembles 
that  of  the  house  of  lords  in  Mersey  Co.  v.  Nay  lor. 

Being  of  opinion  that  the  plaintiff's  failure  to  make  such  shipments 
in  February  and  March  as  the  contract  required  prevents  his  main- 
taining this  action,  it  is  needless  to  dwell  upon  the  further  objection 
that  the  shipments  in  April  did  not  comply  with  the  contract,  because 
the  defendants  could  not  be  compelled  to  take  about  1,000  tons  out 
of  the  larger  quantity  shipped  in  that  month,  and  the  plaintiff,  after 
once  designating  the  names  of  vessels,  as  the  contract  bound  him  to 
do,  could  not  substitute  other  vessels.  See  Busk  v.  Spence,  4  Camp. 
329 ;   Graves  v.  Legg,  9  Exch.  709 ;  Renter  v.  Sala,  above  cited. 

Judgment  affirmed. 

The  chief  justice  was  not  present  at  the  argument,  and  took  no  part 
in  the  decision  of  this  case. 


CAHEN  V.  PLATT. 

(Court  of  Appeals  of  New  York,  1877.     69  N.  Y.  848,  2.j  Am.  Rep.  203.) 

Earl,  J.  In  September,  1872,  at  the  city  of  New  York,  the  plaintiff 
sold  to  the  defendants  ten  thousand  boxes  of  glass,  at  seven  and  one- 
half  per  cent  discount  from  the  tariff  price  of  July,  1872,  to  be  paid 
for  in  gold,  at  New  York,  upon  delivery  of  invoice  and  bill  of  lading, 
by  bills  of  exchange  on  Antwerp,  The  glass  was  to  be  of  approved 
standard  qualities,  and  was  to  be  shipped  on  board  of  sailing  vessels 
at  Antwerp,  and  to  be  at  the  risk  of  the  defendants  as  soon  as  shipped, 
and  they  were  to  insure  and  pay  the  freight  and  custom  duties.  The 
glass  was  to  be  delivered  during  the  months  of  October,  November 
and  December,  1872,  and  January,  1873.  In  pursuance  of  this  con- 
tract, the  plaintiff  delivered  to  the  defendants  four  thousand  nine  hun- 
dred and  twenty-four  boxes  of  glass  for  which  they  paid.  They  re- 
fused to  receive  any  more,  and  this  action  was  brought  to  recover 
■damages  consequent  upon  such  refusal. 


413  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

I  The  defendants  claimed,  and  gave  evidence  tending  to  prove,  that 
the  glass  delivered  was  not  of  approved  standard  quality,  and  hence 
that  they  had  the  right  to  refuse  to  take  the  balance. 

While  some  months  after  the  glass  was  delivered  the  defendants 
complained  of  its  quality,  they  at  no  time  offered  to  return  it,  or  gave 
plaintiff  notice  to  retake  it.  They  received  it  under  the  contract,  and 
it  is  not  important  in  this  action  to  determine,  as  no  counter-claim  is 
set  up,  whether  or  not  a  right  of  action  for  damages  on  account  of 
the  inferior  quality  of  the  glass  survived  the  acceptance.  The  fact 
that  the  glass  delivered  and  received  upon  the  contract  was  inferior 
did  not  give  them  the  right  to  repudiate  the  contract  altogether.  They 
could  demand  better  glass,  and  when  the  plaintiff  oft"ered  to  deliver 
the  balance,  if  it  was  inferior,  they  could  refuse  to  accept  it.  But  if 
plaintiff  was  ready  and  willing  to  deliver  for  the  balance  such  glass  as 
the  contract  called  for,  they  were  bound  to  receive  it.  Here  the  plain- 
tiff requested  them  to  take  the  balance  of  the  glass,  and  they  refused 
to  take  any  more,  and  thus  repudiated  and  put  an  end  to  the  contract. 
There  was  no  proof  that  the  plaintiff  insisted  upon  delivering  inferior 
glass,  or  that  he  was  not  ready  and  willing  to  deliver  glass  of  the 
proper  quality.  They  did  not  take  the  position  that  they  were  willing 
to  receive  glass  of  approved  standard  quality,  but  refused  to  take  any 
more  glass  under  the  contract.  There  was  therefore  such  a  breach 
of  contract  as  entitled  the  plaintiff  to  recover  such  legal  damages  as 
he  sustained  by  the  breach. 

The  only  other  question  to  be  considered  is,  whether  a  proper  rule 
of  damages  was  laid  down  by  the  court  at  the  trial. 

The  contract  was  made  in  New  York,  and  it  was  doubtless  contem- 
plated by  the  parties  that  the  glass  would  be  carried  to  New  York. 
But  the  plaintiff  was  not  bound  to  deliver  it  there.  His  delivery  was 
upon  shipboard  at  Antwerp,  and  after  the  glass  was  shipped  the  de- 
fendants could  transport  it  to  any  part  of  the  world.  It  was  then  at 
their  risk,  and  they  were  liable  to  pay  for  it,  although  it  should  be  lost. 
After  plaintiff  had  shipped  the  glass,  all  he  was  bound  further  to  do, 
to  entitle  him  to  payment,  was  to  present  to  the  defendants  at  New 
York  the  invoices  and  bills  of  lading  of  the  glass. 

Here  the  balance  of  the  glass  was  not  actually  delivered.  The  de- 
fendants notified  plaintiff  not  to  ship,  and  absolutely  refused  to  take 
any  more,  and  hence  the  glass  remained  in  Belgium.  The  general 
measure  of  damages  in  such  a  case  is  the  difference  between  the  con- 
tract-price and  the  m.arket-price  at  the  time  and  place  of  delivery. 
This  measure  is  adopted  as  one  that  will  generally  give  complete  in- 
demnity to  the  seller.  He  can  dispose  of  the  commodity  contracted 
to  be  sold  at  the  market-price,  and  his  damage  will  be  the  difference 
between  the  price  thus  obtained  and  the  price  he  would  have  received 
if  the  contract  had  been  performed. 

Evidence  as  to  the  price  need  not  be  confined  to  the  precise  time 
when  the  contract  was  to  have  been  performed.    It  may  sometimes  be 


Sec.  4)  DELIVERY    AND   PAYMENT  413 

impracticable  to  show  the  price  at  the  precise  time,  and  hence  evidence 
of  the  price  for  a  brief  period  before  and  after  the  time  may  be  given, 
not  for  the  purpose  of  establishing  a  market-price  at  any  other  time, 
but  for  the  purpose  of  showing  as  well  as  practicable  the  market-price 
on  the  day  the  contract  was  to  have  been  performed.  So  it  may  not 
always  be  practicable  to  show  the  price  at  the  precise  place  of  delivery. 
There  may  have  been  no  sales  of  the  commodity  there,  and  hence 
evidence  of  the  price  at  places  not  distant,  or  in  other  controlling  mar- 
kets, may  be  given,  not  for  the  purpose  of  establishing  a  market-price 
at  any  other  place,  but  for  the  purpose  of  showing  the  market-price  at 
the  place  of  delivery.  Dana  v.  Fiedler^  12  N.  Y.  40,  62  Am.  Dec. 
130;  Dustan  v.  McAndrew,  44  N.  Y.  72;  Durst  v.  Burton,  47  N.  Y. 
167,  7  Am.  Rep.  428. 

Here  there  was  no  difficulty.  There  was  a  market-price  at  the  place 
of  delivery.  The  defendants  proved  that  the  market-price  there  was 
thirty-seven  and  one-half  per  cent  off  from  the  tariff  rate,  and  the 
plaintiff  proved  that  the  market-price  in  New  York  was  fifty  per  cent 
off.  The  court  charged  the  jury  that  the  plaintiff  was  entitled  to  re- 
cover the  difference  between  the  contract-price  and  the  market-price 
in  the  city  of  New  York,  and  this  charge  gave  the  plaintiff  several 
thousand  dollars  more  than  he  could  upon  the  evidence  have  recovered 
if  the  court  had  charged  that  the  market-price  at  Antwerp  should  be 
taken  instead  of  that  at  New  York, 

In  this  charge,  which  was  properly  excepted  to,  the  court  erred,  and 
for  this  error  the  judgment  must  be  reversed  and  new  trial  granted, 
costs  to  abide  event.     All  concur. 

Judgment  reversed.-^ 


REYBOLD  V.  VOORHEES  et  al. 
(Supreme  Court  of  Pennsylvania,  18.58.     .30  Pa.  116.) 

This  was  an  action  of  covenant,  by  Peter  Voorhees,  Benjamin  Mar- 
latt,  George  Fielder,  and  Abijah  Mount,  trading  as  Voorhees,  Marlatt 
&  Co.,  against  William  Reybold.  The  case  was  tried  on  the  31st  of 
December  1856,  before  Knox,  J.,  and  resulted  in  a  verdict  for  the 
plaintiffs  for  $1,520.20;   upon  which  judgment  was  entered. 

It  appeared  on  the  trial  that,  on  the  4th  of  August  1854,  the  parties 
entered  into  the  following  agreement : 

"An  article  of  agreement  made,  this  fourth  day  of  August,  A.  D. 
1854,  between  William  Reybold,  of  the  county  of  New  Castle,  and 
state  of  Delaware,  of  the  first  part,  and  Peter  Voorhees,  Benjamin 
Marlatt  &  Co.,  of  the  state  of  New  Jersey,  of  the  second  part,  doth 

2  6  See  J.  W.  Ellison,  Son  &  Co.  v.  Flat  Top  Grocery  Co.,  69  W.  Va.  380, 
71  S.  E.  .391  (1911),  with  elaborate  note,  .38  L.  R.  A.  (N.  S.)  5.39 :  and  compare 
Enterprise  Mfg.  Co.  v.  Oppenheim,  114  Md.  368,  79  Atl.  1007,  38  L.  R.  A.  (N 

S.)  518  (1911). 


414  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

covenant  and  agree  with  the  said  William  Reybold  for  all  the  peaches 
growing  on  his  two  farms  in  said  county;  and  said  Voorhees,  Mar- 
latt  &  Co.,  doth  agree  to  find  baskets  to  put  said  peaches  in,  and  pay 
him  seventy-five  cents  per  basket  for  said  peaches,  picked,  assorted, 
and  delivered  at  Delaware  city,  in  good  merchantable  order,  at  his 
own  proper  cost  and  expense,  or  as  the  said  Peter  Voorhees  or  his 
agent  may  require ;  said  peaches  to  be  paid  for  at  the  end  of  each 
week,  as  delivered  at  Delaware  City." 

On  the  same  day  $500  was  paid  to  the  defendant,  as  security  for 
the  faithful  performance  of  the  agreement,  and  the  following  re- 
ceipt was  given  by  the  defendant's  agent : 

"Aug.  4,  1854.  Received  from  Voorhees,  Marlatt  &  Co.,  five  hun- 
dred dollars,  on  account  of  peach  orchard,  as  per  contract  to  be  ex- 
ecuted. Anthony   Reybold,   for   William   Reybold." 

On  the  following  morning,  which  was  Saturday,  the  defendant 
delivered  his  peaches  to  the  plaintiffs,  but  was  requested  to  take 
them  back  again  for  that  day,  and  not  to  begin  to  deliver  them,  un- 
der his  contract,  until  the  following  Monday,  which  he  did.  And, 
on  Monday,  the  7th  of  August,  he  commenced  to  deliver  his  peaches 
on  the  wharf,  at  Delaware  City,  in  accordance  with  his  agreement, 
and  delivered  them  to  the  end  of  the  week ;  but,  at  the  end  of  that 
time,  neither  the  plaintiffs,  nor  any  one  on  their  behalf,  appeared  at 
Delaware  City,  to  pay  the  defendant,  who  was  there  in  waiting.  Nor 
did  any  one  of  the  plaintiffs,  or  any  one  for  them,  appear  at  Dela- 
ware City,  to  make  payment  on  the  following  Monday,  on  which 
day  the  defendant  shipped  his  peaches  to  them  as  usual. 

On  Tuesday,  the  defendant,  not  having  been  paid,  or  received 
any  communication  from  the  plaintiffs,  and  the  peaches  already  de- 
livered amounting  to  the  sum  of  $539.25,  stopped  sending  them  his 
peaches,  and  shipped  them  to  his  agent  in  Philadelphia,  to  be  sold 
on  his  own  account.  And,  on  the  afternoon  of  the  same  day,  the 
plaintiffs  having  ascertained  that  fact,  went  to  Delaware  City,  and 
tried  to  induce  the  defendant  to  continue  sending  his  peaches  to 
them ;  which  he  refused  to  do,  alleging  that  they  had  broken  their 
contract,  and  had  endeavored  to  overreach  him.  They  did  not,  how- 
ever, offer  to  pay  for  the  peaches  already  delivered,  and  permit  the 
original  security  to  remain.  They  subsequently  paid  the  balance  of 
$39.25  due  to  the  defendant.     *     *     *  27 

LowRiE,  C.  J.  Promptness  is  of  essential  importance  in  the  ex- 
ecution of  a  contract  for  the  sale  and  delivery  of  a  ripening  crop 
of  peaches ;  and  when  the  parties  have  contracted  for  the  times  of 
delivery,  and  payment,  they  are  entitled  to  be  tried  by  their  contract. 
If  the  buyer  does  not  pay  according  to  contract,  the  seller  is  not 
bound  to  keep  the  peaches  for  him  at  the  risk  of  their  rotting,  nor 
to  deliver  them  at  the  risk  of  not  being  paid,  any  more  than  the 
buyer  would  be  bound  to  accept  the  delivery  weekly  instead  of  daily. 

2  7  Part  of  the  statement  of  facts  is  omitted. 


Sec.  4)  DELIVERY    AND   PAYMENT  415 

Neither  party  has  any  time  to  be  wasted  by  thei  unpunctuality  of 
the  other;  and  neither  is  required  to  endure  the  anxiety  of  having 
his  summer's  success  dependent  on  one  who  is  not  careful  of  his 
engagement.  The  success  of  both  depends  upon  their  promptness 
in  the  performance  of  present  duty.  The  seller  could  not  expect 
the  buyer  to  be  running  down  to  the  country  to  look  after  his  peaches, 
nor  the  buyer  that  the  seller  should  be  running  up  to  Philadelphia 
after  his  money.  It  is  the  interest  of  both  the  peach  dealer  and 
the  peach  grower  to  agree  upon  the  times  of  performance,  and  courts 
can  do  nothing  better  for  the  parties  than  to  supervise  the  execu- 
tion of  the  contract  as  made,  without  seeking  to  modify  it,  except 
where  modification  is  required  by  circumstances  beyond  the  control 
or  contemplation  of  the  parties. 

The  plaintiffs  broke  their  contract  by  not  paying  up  on  Saturday, 
and  the  defendants  had  a  right  then  to  rescind  it,  and  seek  another 
market.  He  continued  another  day  to  execute  it  on  his  side,  and 
again  the  plaintiffs  failed.  Then  he  rescinded,  and  a  day  or  two  aft- 
erwards the  plaintiffs  came  and  were  willing  to  pay.  We  think  they 
were  too  late.  To  relieve  them  would  be  to  change  their  contract 
without  cause,  which  we  cannot  do.  If  the  plaintiffs  came  a  few 
days  afterwards,  and  offered  proper  terms  to  secure  their  future 
performance  and  these  were  rejected,  this  might  be  a  defence  against 
a  suit  for  damages  for  their  breach,  but  it  could  not  restore  the  con- 
tract. 

In  deciding  this,  we  have  assumed  that  the  $500  advanced  were 
to  stand  as  security  for  the  plaintiff's'  weekly  payments,  and  not  as 
a  payment  which  they  might  apply  to  any  week's  delivery.  We  think- 
that  such  is  the  contract.  It  says  the  payments  shall  be  at  the  end 
of  each  week.  The  plaintiffs  cannot  get  over  this  without  present- 
ing their  receipt,  and  the  necessary  witness  to  prove  it  declares  that 
the  $500  were  to  stand  as  security.  All  the  probabilities  of  the  case, 
and  all  the  other  evidence  confirm  it.  The  plaintiff's  case  fails  there- 
fore at  the  very  outset,  because  he  cannot  prove  his  own  perform- 
ance according  to  the  contract.  He  did  not  pay  at  the  end  of  the 
first  week,  nor  offer  to  do  it  for  several  days  afterwards. 

After  expressing  these  views,  we  are  hardly  called  on  to  speak 
of  the  evidence  furnishing  a  measure  of  damages.  The  place  of 
delivery  was  Delaware  City,  and  it  is  of  the  value  in  that  neighbor- 
hood that  we  must  inquire.  Yet  a  great  deal  must  be  left  to  the 
discretion  of  the  judge  in  defining  the  neighbourhood.  In  doing  so 
he  might  very  well  know  that,  as  a  peach  market,  Delaware  City  is 
a  mere  outpost  of  Philadelphia,  and  might  regard  the  neighbour- 
hood as  thus  extended,  and  make  allowance  for  difference  of  ex- 
penses. We  incline  to  think,  however,  that  New  York  could  hardly 
be  so  regarded. 

Judgment  reversed,  and  a  new  trial  awarded. 


416  OBLIGATIONS    OF    SELLER    AND    BUIER  (Ch.  4 


SECTION   5.— INSPECTION 


McNEAL  V.  BRAUN. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1891.     53  N.  J.  Law,  617,  23 
Atl.  GST,  26  Am.  St.  Rep.  441.) 

See  ante,  p.  320.  for  a  report  of  the  case. 


GIFFEN  V.  SEL:MA  FRUIT  CO.     (Civ.  288.) 
(District  Court  of  Appeal  of  California,  1907.     5  Cal.  App.  50,  89  Pac.  855.) 

Cooper,  P.  J.^®  This  action  was  brought  to  recover  damages  for 
breach  of  contract,  and  was  tried  before  a  jury.  A  verdict  was  re- 
turned for  plaintitY.  upon  which  judgment  was  duly  entered.  This 
appeal  is  from  the  judgment  and  order  denying  defendant's  motion 
for  a  new  trial. 

The  facts  are  in  substance  as  follows:  In  September,  1904,  the 
defendant  entered  into  a  contract  in  writing  with  L.  F.  Giffen  & 
Co.  (plaintilt's  assignor)  by  the  terms  of  which  it  agreed  to  seed  and 
pack  in  a  first-class  manner  the  raisins  of  Gift'en  &  Co.  for  the  sea- 
son of  1904-05  at  the  rate  of  $1.35  per  100  pounds. 

In  December,  1904,  the  defendant,  under  the  contract,  seeded  and 
packed  the  car  load  of  raisins,  out  of  which  this  controversy  arose 
for  Giffen  &  Co.,  and  received  compensation  therefor  according  to 
the  terms  of  the  contract.  It  is  alleged  that,  instead  of  seeding  and 
packing  the  raisins  in  accordance  with  the  contract,  the  defendant 
negligently  seeded  and  packed  them  so  that  they  spoiled  and  became 
absolutely  worthless.  The  verdict  of  the  jury  finds  by  implication 
that  the  allegation  as  to  defendant's  negligence  is  true.  The  state- 
ment on  motion  for  a  new  trial  shows  that  the  plaintiff,  introduced 
evidence  tending  to  show  that  the  raisins  were  not  in  good  condition, 
and  that  their  condition  "was  due  to  the  fault  and  negligence  of  the 
defendant  in  seeding,  processing  and  packing  said  raisins."  Appel- 
lant's counsel,  in  their  opening  brief,  very  frankly  and  properly  ad- 
mit that  "the  evidence  as  to  such  wrongful  acts  of  defendant  \vas 
conflicting,  and  the  jury  found  for  the  plaintiff." 

It  seems,  therefore,  evident  that  the  defendant  violated  its  con- 
tract, and  thus  became  liable  for  the  damages  it  caused  thereby. 

It  is  contended,  however,  by  the  defendant  that  Giffen  &  Co.,  prior 
to  the  commencement  of  this  action,  had  sold  the  raisins  to  McCord- 
Brady  Co.,  of  Omaha,  and  hence  they  argue  that  the  right  of  action 

2s  Part  of  the  opinion  is  omitted. 


Sec.  5)  INSPECTION  417 

was  in  McCord-Brady  Co.,  and  not  in  the  plaintiff.  The  decision 
of  the  case  upon  its  merits  is  thus  dependent  upon  the  question  as 
to  whether  or  not  Giffen  &  Co.  had  parted  with  the  title  to  the  raisins. 
The  evidence  shows  that  prior  to  the  commencement  of  the  action 
Giffen  &  Co.  had  agreed  to  sell  to  McCord-Brady  Co.  at  Omaha  a 
given  quantity  of  raisins  in  accordance  with  a  sample  which  had 
been  sent.  The  car  load  of  raisins  involved  in  this  suit  was  shipped 
to  fill  this  order.  The  raisins  were  billed  to  the  order  of  Giffen  & 
Co.  at  Omaha  subject  to  inspection.  When  the  shipment  was  made, 
Gift'en  &  Co.  drew  on  McCord-Brady  Co.  for  the  agreed  price  of 
the  raisins ;  the  draft  being  attached  to  the  bill  of  lading,  and  for- 
warded to  the  National  Bank  of  Omaha  for  collection. 

The  bill  of  lading  bore  across  the  face  of  it  the  direction  to  "Al- 
low inspection."  An  invoice  and  bill  of  the  raisins  were  sent  to  the 
McCord-Brady  Co.,  and  the  draft  was  paid  by  them  upon  presenta- 
tion, but  at  the  time  it  was  paid  the  company  had  not  inspected  nor 
received  the  raisins,  because  they  had  not  arrived  at  their  destina- 
tion. Upon  the  arrival  of  the  raisins,  they  were  rejected  upon  in- 
spection, and  Giffen  &  Co.  were  notified  of  such  rejection,  and,  upon 
being  so  notified,  they  stored  the  raisins  in  a  warehouse  in  Omaha, 
and  were  unable  to  dispose  of  them.  In  the  course  of  dealing  be- 
tween Giffen  &  Co.  and  the  McCord-Brady  Co.,  the  drafts  drawn  on 
the  company  at  Omaha  were  paid,  charged  to  the  account  of  Gift'en 
&  Co.,  and  the  goods,  when  received,  credited  to  Giffen  &  Co.  The 
draft  in  this  case  was  charged  to  the  account  of  Gift'en  &  Co.,  and 
has  since  been  paid  in  full  by  them. 

We  are  of  opinion  that  the  above  facts  do  not  constitute  a  sale 
of  the  raisins  to  the  McCord-Brady  Co.  A  sale  is  a  contract  by 
which  one  transfers  to  another  an  interest  in  property.  In  order 
to  constitute  a  sale,  the  contract  must  give  and  pass  rights  of  prop- 
erty. The  property  must  be  identified.  The  evidence  shows  that 
the  raisins  were  bought  by  sample,  and  that  they  were  rejected  be- 
cause not  up  to  sample.  Upon  proof  that  the  sale  was  made  by 
sample  the  law  implies  a  warranty  that  the  quality  of  the  property 
sold  is  up  to  the  sample  exhibited  (Civ.  Code,  §  1766),  and  the  title 
will  not  pass  until  there  has  been  an  acceptance.  Mecliem  on  Sales, 
§§  522,  746,  1212;  Pope  v.  Allis,  115  U.  S.  372,  6  Sup.  Ct.  69,  29 
L.  Ed.  393;  Taylor  v.  Saxe,  134  N.  Y.  67,  31  N.  E.  258;  Gardiner 
V.  McDonogh,  147  Cal.  313,  81  Pac.  964. 

It  is  claimed  that  the  delivery  of  the  bill  of  lading  with  the  draft 
to  McCord-Brady  Co.  had  the  effect  to  transfer  the  title  of  the  car 
load  of  raisins  to  McCord-Brady  Co.  A  bill  of  lading  does  not  in 
all  cases  transfer  the  title  of  the  property  described  thereon  to  the 
party  to  whom  it  is  delivered.  It  depends  upon  the  circumstances 
of  the  particular  case  and  the  intention  of  the  parties.  In  this  case 
the  intention  was  that  the  bill  of  lading  should  be  delivered  to  Mc- 
WooDw.  Sales — 27 


418  OBLIGATIONS    OF    SELLER    AND    BUYER  (Cll.  4 

Cord-Brady  Co.  with  the  draft,  and  when  the  draft  was  paid  and 
the  raisins  inspected,  and  accepted  as  being  up  to  the  sample,  the  title 
should  vest  in  McCord-Brady  Co.  The  bill  of  lading  was  delivered, 
the  draft  paid,  but  the  goods  were  not  what  McCord-Brady  Co.  had 
purchased,  and  they  never  accepted  them,  nor  did  they  take  posses- 
sion of  them.  It  was  not  intended  that  the  title  should  pass  by  the 
delivery  of  the  bill  of  lading.  A  bill  of  lading  does  not  have  the  ef- 
fect of  passing  the  title,  where  the  evidence  clearly  shows  a  contrary 
intention.  Emery's  Sons  v.  Irving  Nat.  Bank,  25  Ohio  St.  364,  18 
Am.  Rep.  299;  Hilmer  v.  Hills,  138  Cal.  135,  70  Pac.  1080;  Dodge 
v.  Meyer,  61  Cal.  405.     *     *     * 

The  judgment  and  order  are  affirmed. 


EATON  V.  BLACKBURN. 

(Supreme  Court  of  Oregon,  1008.     52  Or.  300,  96  Pac.  870.  20  L.  R.  A.  [N.  S.l 
5.3.  132  Am.  St.  Rep.  705,  IG  Ann.  Cas.  1198.) 

This  is  an  action  to  recover  the  purchase  price  of  two  car  loads 
of  hay.  The  defense  is  that  the  hay,  which  plaintiff  agreed  to  sell 
and  deliver  to  defendants,  was  to  be  "good,  number  one,  merchant- 
able hay,"  and  that  furnished  was  not  of  this  quality,  for  which 
reason  it  was  rejected.  The  defendants  are  commission  merchants, 
residing  and  doing  business  in  Baker  City.  Plaintiff  resides  in  Un- 
ion county,  some  miles  distant  from  Baker.  In  March,  1906,  he 
contracted  and  agreed  to  sell  to  defendants  five  car  loads  of  hay, 
for  use  in  their  business,  at  $11.50  per  ton,  f.  o.  b.  cars,  Nodine  Spur, 
Union  county.  The  contract  was  made  at  Baker  City,  and  defend- 
ants were  to  pay  the  freight  from  place  of  shipment  to  that  point, 
but  nothing  was  said  about  the  time  or  place  of  payment,  or  the  in- 
spection or  acceptance  of  the  hay.  Shortly  after  making  the  con- 
tract, plaintiff  loaded  two  cars  with  hay  at  Nodine  Spur,  and  the 
same  were  carried  by  the  railroad  company  to  Baker,  reaching  there 
Sunday  morning,  March  25th.  On  the  following  day  defendants, 
before  they  had  examined  or  inspected  the  hay,  made  some  eft'ort 
to  sell  it,  but  were  unable  to  do  so.  On  the  morning  of  the  27th, 
in  company  with  Abercrombie — a  prospective  purchaser — Mr.  Breck, 
one  of  defendants,  opened  the  cars,  in  which  the  hay  had  been 
shipped,  and  examined  it,  but  Abercrombie  was  unwilling  to  pur- 
chase. In  the  afternoon  of  the  same  day  they  made  a  further  and 
more  careful  examination,  and  Breck,  claiming  that  the  hay  was 
not  of  the  kind  and  quality  contracted  for,  refused  to  accept  it,  and 
so  notified  plaintiff  and  the  railroad  company  on  the  following  morn- 
ing. At  the  time  Breck  and  Abercrombie  were  examining  the  hay 
on  the  afternoon  of  the  27th,  two  bales  were  taken  out  of  one  of 
the  cars  for  inspection,  and  on  the  same  afternoon  one  of  defend- 
ants' employes,  without  their  knowledge   or   authority,   sold   one   of 


Sec.  5)  INSPECTION  419 

such  bales  to  a  shipper  of  stock  passing  through  Baker  City,  and 
paid  the  money  over  to  defendants.  As  soon  as  they  learned  of  the 
sale,  they  repudiated  the  act  of  their  employe,  and  directed  him  to 
return  to  the  car  another  bale  equally  as  good,  or  better,  than  the 
one  sold  by  him.  At  the  time  of  the  trial  it  was  contended  by  plain- 
tiff that,  under  the  contract  between  him  and  defendants,  it  was  the 
duty  of  defendants  to  inspect  and  accept  or  reject  the  hay  at  Nodine 
Spur,  where  it  was  to  be  loaded  on  the  cars ;  and,  if  they  neglected 
to  do  so,  they  were  bound  to  receive  such  hay  as  was  actually  ship- 
ped, and  rely  upon  a  claim  of  damages  for  breach  of  contract,  if  it 
was  of  inferior  kind  and  quality,  but,  if  this  was  not  so,  defendants' 
conduct,  after  the  hay  reached  Baker  City,  was  such  as  to  amount, 
in  law,  to  an  acceptance  thereof. 

The  court  instructed  the  jury  that  if  the  hay,  delivered  on  the  cars 
by  plaintiff  at  Nodine  Spur,  was  substantially  the  kind  and  quality 
called  for  by  the  contract,  it  would  amount  to  a  full  and  complete 
performance,  and  enable  him  to  recover  the  contract  price,  whether 
the  hay  was  subsequently  accepted  by  defendants  or  not ;  and,  if  the 
hay  was  different  or  inferior  to  that  which  plaintiff  agreed  to  sell, 
notwithstanding  which  the  defendants  accepted  it,  or  did  somethirig 
amounting  to  an  acceptance,  they  could  not  thereafter  repudiate 
their  liability  by  returning  or  tendering  a  return  of  the  hay,  but  that 
defendants  had  a  reasonable  time  in  which  to  inspect  the  hay  after 
it  reached  Baker  City,  and  if  it  was,  in  fact,  of  an  inferior  quality, 
and  not  according  to  the  contract,  they  could  reject  it,  and  refuse 
to  accept  or  pay  for  it,  and  if  they  did  so,  plaintiff  could  not  recover 
in  this  action.  The  court  also  held  that  the  question  as  to  whethen 
defendants  accepted  the  hay  after  it  reached  Baker  was  one  of  fact,! 
to  be  determined  by  the  jury  under  proper  instructions  from  the 
court,  which  were  given  accordingly. 

The  cause  was  tried  before  a  jury,  and  a  verdict  rendered  in  favor 
of  defendants.  From  the  judgment  subsequently  rendered  thereon, 
this  appeal  is  taken.  The  errors  assigned  are  in  the  giving  and  re- 
fusing of  certain  instructions  and  admission  of  testimony.     Affirmed." 

Bdan,  C.  J.^°  (after  stating  the  facts  as  above).  The  principal 
point  relied  upon  by  plaintiff  for  a  reversal  of  the  judgment  is  the 
ruling  of  the  court  that,  under  the  contract  for  the  sale  of  hay  in 
question,  defendants  had  a  right  to  inspect  it  after  it  reached  Baker 
City,  and,  if  it  did  not  conform  to  the  contract,  to  refuse  to  accept 
or  pay  for  it.  The  argument  is  that  the  place  of  inspection  and  ac- 
ceptance or  rejection  was  at  Nodine  Spur,  where  the  hay  was  to  be 
delivered  by  the  plaintiff,  f.  o.  b.  cars;  and,  if  defendants  neglected 
to  exercise  the  right  of  inspection  at  that  time  and  place,  they  were 
liable  for  the  value  of  the  hay  so  delivered.  But  we  do  not  so  find 
the  law.     No  place  or  time  of  payment  or  of  inspection  or  accept- 

2  9  Part  of  the  opinion  is  omitted. 


420  OBLIGATIONS    OF    SELLER    AND    BUYER  (Cll.  4 

ance  was  stipulated  in  the  contract.  All  parties  concur  in  this  point. 
The  contract  was  made  between  plaintiff  and  defendant  Breck. 
These  gentlemen  both  say  that  Breck  met  plaintiff  at  the  depot  at 
Baker  City,  and  inquired  of  him  if  he  had  any  hay  for  sale,  and  that 
he  (plaintiff)  said  he  had;  that  the  price  was  $11.50  per  ton,  f.  o. 
b.  cars  at  Nodine  Spur,  and  that  Breck  said  he  would  take  five  car 
loads  at  that  price,  and  under  the  conditions  named. 

The  only  difference  between  the  witnesses  is  in  reference  to  the 
terms  of  the  contract  regarding  the  kind  and  quality  of  hay  to  be 
delivered,  and  that  matter  is  concluded  by  the  verdict  of  the  jury. 
Some  stress  is  laid,  by  counsel  for  plaintiff',  upon  a  statement  by 
Mr.  Breck,  on  cross-examination,  that  he  would  have  had  the  priv- 
ilege of  examining  the  hay  if  he  had  gone  down  to  Nodine  Spur, 
but  this  was  merely  the  opinion  of  the  witness,  and  was  not  part 
of  the  contract.  Indeed,  when  asked  as  to  whether  he  was  to  be 
present  at  Nodine  Spur  to  receive  the  hay  for  shipment,  he  replied : 
"Mr.  Eaton  knew  it  was  impossible  for  me  to  be  there.  There  was 
no  understanding  of  that  kind  at  all." 

So  that  it  is  manifest  from  the  testimony  that  there  was  no  time 
Or  place  of  inspection  or  acceptance  agreed  upon  by  the  parties,  or 
for  the  payment  of  the  purchase  price.  The  payment,  therefore,  be- 
came due  and  payable  on  a  complete  delivery,  and  there  could  be  no 
such  delivery  without  an  opportunity  for  inspection.  Under  an  ex- 
ecutory contract  for  the  future  sale  and  delivery  of  goods  of  a  speci- 
fied quality,  the  quality  is  a  part  of  the  description,  and  the  seller 
is  bound  to  furnish  goods  actually  complying  with  such  description. 
If  he  tenders  articles  of  inferior  quality,  the  vendee  is  not  bound 
to  accept  them ;  and,  unless  he  does  so,  he  is  not  liable  therefor. 
This  necessarily  gives  to  the  vendee  the  right,  and  imposes  upon  him 
the  duty,  of  inspection,  and  he  must  therefore  be  given  an  oppor- 
tunity to  make  such  inspection  before  becoming  liable  for  the  pur- 
chase price,  unless  the  contract  otherwise  provides ;  and  where  ar- 
ticles are  to  be  delivered  to  a  common  carrier  by  the  vendor,  to  be 
forwarded  to  the  vendee  at  a  distant  point,  and  no  provision  is  made 
for  inspection  and  acceptance  before  or  at  the  time  of  shipment, 
the  vendee  is  entitled,  under  the  law,  to  a  reasonable  time,  after  the 
goods  arrive  at  their  destination,  in  which  to  exercise  the  right  of 
inspection,  and  to  accept  or  reject  them,  if  they  do  not  comply  with 
the  contract.  Brigham  v.  Hibbard.  28  Or.  386,  43  Pac.  383 ;  John- 
son v.  Hibbard,  29  Or.  186,  44  Pac.  287,  54  Am.  St.  Rep.  787; 
Steiger  v.  Fronhofer,  43  Or.  178,  72  Pac.  693;  Puritan  Mfg.  Co. 
V.  Westermire,  47  Or.  557,  84  Pac.  797. 

Pierson  et  al.  v.  Crooks  et  al..  115  N.  Y.  539,  22  N.  E.  349,  12 
Am.  St.  Rep.  831,  is  much  in  point.  That  case  construed  a  contract 
between  a  New  York  importer  and  a  London  dealer,  for  the  sale  of 
iron  by  the  latter  to  the  former.  The  iron  was  to  be  delivered  f. 
o.  b.  at  Liverpool,  and  paid  for  by  bills  of  exchange  at  60  days,  on 


Sec.  5)  INSPECTION  421 

delivery  of  the  shipping  documents  at  New  York.  The  iron  shipped 
by  the  London  dealer  was  not  in  compliance  with  the  contract,  and 
the  New  York  merchant  refused  to  accept  it,  and  brought  an  ac- 
tion against  the  vendor  to  recover  money  paid  for  duties  and  ex- 
penses at  the  port  of  New  York.  The  seller  contended  that  the  buyer 
was  bound  to  inspect  the  iron  and  ascertain  its  quality  at  Liverpool ; 
and,  not  having  done  so,  it  was  in  law  an  acceptance,  which  pre- 
cluded him  from  subsequently  questioning  the  quality  or  returning 
the  goods.  But  the  court  refused  to  concur  in  this  view,  and  Mr. 
Justice  Andrews  says:  "When  and  at  what  place  the  right  of  in- 
spection was  to  be  exercised  was  not  definitely  fixed  by  the  contract.  \ 
The  intention  of  the  parties,  when  ascertained,  is  to  govern.  They  j 
might  have  provided  that  the  inspection  should  be  made  either  at  • 
Liverpool  or  at  New  York.  The  contract  is  silent  on  this  point ; 
and  the  defendants  insist  that,  in  the  absence  of  express  words,  the 
law  ascertains  and  fixes  the  intention  that  examination  should  be 
made  at  the  pla^^e  where  the  defendants  were  to  deliver  the  iron,  to 
wit,  at  Liverpool.  We  are,  however,  of  the  opinion  that  where  goods 
are  ordered  of  a  specific  quality,  which  the  vendor  undertakes  to 
deliver  to  a  carrier,  to  be  forwarded  to  the  vendee  at  a  distant  place, 
to  be  paid  for  on  arrival,  the  right  of  inspection,  in  the  absence  of 
any  specific  provision  in  the  contract,  continues  until  the  goods  are 
received  and  accepted  at  their  ultimate  destination,  and  that  the  car- 
rier is  not  the  agent  of  the  vendee  to  accept  the  goods  as  correspond- 
ing with  the  contract,  although  he  may  be  his  agent  to  receive  and 
transport  them." 

In  answer  to  the  argument  made  there,  as  here,  that  the  title 
vested  in  the  vendee  upon  the  delivery  of  the  goods  to  the  common 
carrier,  and  that  the  vesting  of  such  title  implies  an  acceptance,  and 
is  inconsistent  with  the  alleged  right  of  inspection  and  rejection  of 
the  goods  on  their  arrival  at  the  place  of  destination,  the  learned  jus- 
tice says :  "But  assuming  that  the  title  to  the  iron,  for  some  pur- 
pose, vested  in  the  plaintiffs  on  delivery  to  the  steamers,  it  was,  as 
between  the  vendors  and  vendees,  a  conditional  title,  subject  to  the 
right  of  inspection  and  rejection  of  the  inferior  quality  on  arrival 
at  New  York.  *  *  *  'p^g  ordering  of  goods  of  a  specific  quality 
by  a  distant  purchaser  of  a  manufacturer  or  dealer,  with  directions 
to  ship  them  by  a  carrier,  is  one  of  the  most  frequent  commercial 
transactions.  It  would  be  a  most  embarrassing  and  inconvenient 
rule — more  injurious  even  to  the  dealer  or  manufacturer  than  to 
the  purchasers — if  delivery  to  the  carrier  was  held  to  conclude  the 
party  giving  the  order  from  rejecting  the  goods  on  arrival,  if  found 
not  to  be  of  the  quality  ordered." 

The  same  doctrine  was  applied  by  the  Supreme  Court  of  Massa- 
chusetts in  Alden  v.  Hart,  161  Mass.  576,  37  N.  E.  742.  In  that 
case  the  defendants,  residing  at  New  Bedford,  ordered  a  quality  of 
coal  to  be  shipped  from  Weehawken,  N.  J.,  by  certain  line  of  barges, 


422  OBLIGATIONS    OF    SELLER    AND    BUYER  (Cll.  4 

defendants  to  pay  the  freight.  The  coal  shipped  was  not  of  the  kind 
and  quaUty  ordered,  and  the  court  held  that  the  defendants  had  the 
right  to  reject  it  on  its  arrival  at  New  Bedford,  Mr.  Chief  Justice 
Field  remarking:  "Whether  in  such  case  as  this,  the  title  to  the 
property  passes  to  the  vendee  when  the  coal  is  delivered  on  board 
the  barge  is  not  free  from  doubt,  and  we  have  not  found  it  necessary 
to  decide  the  question.  If  it  be  assumed,  in  favor  of  the  plaintiffs, 
that  the  title  to  this  coal  passed  to  the  defendants  when  it  was  se- 
lected by  the  plaintiffs,  and  laden  free  on  board  upon  the  barge  at 
Weehawken,  and  when  bills  of  lading  were  given  to  the  plaintiffs, 
under  which  the  cargo  was  to  be  delivered  to  the  defendants  or  their 
assigns  at  the  port  of  New  Bedford,  they  paying  the  freight,  we 
are  yet  of  the  opinion  that  the  rulings  at  the  trial  were  correct.  If 
the  title  passed  to  the  defendants,  it  was  a  conditional  title,  and  the 
condition  was  that  the  coal  should  be  found  to  be  of  the  quality  pur- 
chased, and  the  defendants  could  reject  the  coal  if,  upon  examina- 
tion, it  did  not  conform  to  the  implied  warranty  that  it  should  be 
merchantable."  To  the  same  purport,  see  Morse  et  al.  v.  Moore.  83 
Me.  473,  22  Atl.  362,  13  L.  R.  A.  224,  23  Am.  St.  Rep.  783 ;  Holt 
V.  Pie,  120  Pa.  425,  14  Atl.  389;  Fogle  v.  Brubaker,  122  Pa.  7,  15 
Atl.  692. 

We  are  of  the  opinion,  therefore,  that  no  error  was  committed  by 
the  court  below  in  its  ruling  on  this  phase  of  the  case.  In  Samuel 
M.  Lawder  &  Sons  Co.  v.  Albert  Mackie  Grocery  Co.,  97  Md.  1.  54 
Atl.  634,  62  L.  R.  A.  795,  cited  by  plaintiff",  the  contract  required 
payment  to  be  made  for  the  •  goods  at  the  place  of  shipment,  which 
the  court  held  was  necessarily  inconsistent  with  a  right  of  inspection 
at  another  place.  But  here,  as  we  have  seen,  no  time  or  place  of 
payment  was  specified,  and  therefore  it  did  not  become  due  until 
the  goods  were  delivered.  The  cases  of  Barr  v.  Borthwiek,  19  Or. 
578,  25  Pac.  360,  and  Meyer  v.  Thompson,  16  Or.  194,  18  Pac.  16, 
have  no  particular  bearing  here.  The  question  in  the  former  case 
was  one  of  title,  and  in  the  latter  whether  there  had  been  a  sufficient 
delivery  to  take  a  parol  contract,  for  the  sale  of  personal  property, 
out  of  the  statute  of  fraud. 

It  is  also  insisted  that  defendants  waived  the  right  to  reject  the 
hay  for  defective  quality,  by  their  action  and  conduct  in  relation 
thereto  after  it  reached  Baker  City.  But  this  question  was  for  the 
jury,  and,  we  think,  was  fairly  submitted  to  them.  The  defendants 
were  not  precluded  from  rejecting  the  hay  by  merely  receiving  it. 
They  still  had  a  reasonable  time  in  which  to  inspect  and  reject  it, 
if  not  according  to  the  contract. 

Nor  did  their  offer  to  sell  and  dispose  of  the  hay,  before  they  had 
examined  it,  amount  to  an  acceptance.  This  was  before  they  ascer- 
tained that  it  was  of  an  inferior  quality,  and  was  on  the  assumption 
that  plaintiff'  had  complied  with  his  contract,  and  shipped  hay  of  the 
kind  and  quality  agreed  upon.      It  was  therefore  not  conclusive  in 


Sec.  5)  INSPECTION  423 

law  of  an  intent  to  accept  the  hay,  in  performance  of  the  contract 
(Benjamin  on  Sales,  §  703). 

Nor,  again,  was  the  unauthorized  sale  of  one  bale  by  an  employe 
of  defendants  conclusive  of  the  acceptance  by  them  of  the  entire 
shipment.  The  evidence  shows  or  tends  to  show,  that  the  employe 
had  no  authority,  either  express  or  implied,  to  make  such  sale,  and 
that  it  was  promptly  repudiated  by  the  defendants  as  soon  as  they 
learned  of  it.  The  question  of  the  acceptance  of  goods  is  ordinarily 
for  the  jury  (Benjamin  on  Sales,  §  895),  and  there  is  nothing  in  this 
record  to  take  this  case  out  of  the  operation  of  the  rule.     *     *     * 

Finding  no  error  in  the  record,  the  judgment  is  affirmed.^" 


SAMUEL  M.  LAWDER  &  SONS  CO.  v.  ALBERT  MACKIE 
GROCERY  CO. 

(Court  of  Appeals  of  Maryland,  1903.     97  IMd.  1,  54  Atl.  634,  62  L.  R.  A.  795.) 

Lawder  &  Sons  Company  of  Baltimore,  contracted  to  sell  to  the 
Mackie  Grocery  Company,  of  New  Orleans,  700  cases  of  tomatoes  at 
521/2  cents  per  dozen.  "Terms  cash,  less  li/o  per  cent.  Buyer  to  give 
shipping  instructions  when  requested  by  seller.  To  be  delivered  as 
packed  during  the  season  of  1901,  f.  o.  b.  Baltimore."  When  the 
goods  were  loaded  on  a  car  ready  to  go  forward  the  seller  notified  the 
buyer  and  requested  payment,  to  which  request  the  buyer  replied : 
"Will  not  pay  for  the  tomatoes  until  the  goods  reach  us."  Thereupon 
the  seller  refused  to  send  forward  the  goods  and  the  buyer  brought 
this  action  for  breach  of  contract.  Judgment  below  was  for  the  plain- 
tiff.^^ 

Boyd,  j,  *  *  *  Great  stress  was  placed  on  the  right  of  the 
appellee  to  inspect  the  goods  before  acceptance.  If  it  be  conceded  that 
it  had  such  right,  as  it  may  be,  the  further  question  arises  as  to  where, 
under  this  contract,  it  could  be  exercised.  The  mere  fact  that  the 
buyer  has  the  right  to  inspect  goods  before  acceptance  does  not  neces- 
sarily mean  that  the  inspection  is  to  be  made  at  the  residence  or  place 
of  business  of  the  buyer.  He  might  inspect  at  the  seller's  place  of  busi- 
ness, but,  if  the  contract  provides  for  delivery  at  a  particular  place,  hrt 
must  accept  or  reject  at  that  place,  unless  otherwise  provided  for  inj 
the  contract.  In  short,  a  contract  to  deliver  at  one  place  cannot  be  said! 
to  mean  delivery  at  another  place,  because  the  buyer  lives  there,  and 
has  the  right  to  inspect  the  goods,  and  there  is  no  such  uncertainty  as 
to  the  place  of  delivery  in  this  contract  as  would  justify  the  court  in 
holding  that  it  was  at  New  Orleans,  because  the  appellee  had  its  place 
of  business  there.     An  inspection  of  canned  goods  at  any  place  away 

30A  petition  for  a  rehearin?  was  conditionally  denied.     See  52  Or.  310,  97 
Pac.  5.39,  20  L.  R.  A.  (X.  S.)  53,  132  Am.  St.  Rep.  705,  16  Ann.  Cas.  119S. 
31  The  statement  of  facts  is  abridged,  and  part  of  the  opinion  is  omitted. 


424  OBLIGATIONS    OF    SELLER    AXD    BUYER  (Cll.  4 

from  the  canning  establishment  must  he  attended  with  some  difficul- 
ties. Every  can  that  is  opened  is  doubtless  injured  for  the  ordinary 
purposes  of  trade ;  for  unless  it  is  speedily  sold  the  fruit  or  vegetables 
must  soon  become  worthless.  There  is  nothing  in  the  record  to  show 
what  the  custom  is  as  to  inspection,  and  the  parties  made  no  special 
provision  in  the  contract  for  it,  but  it  is  manifest  that  there  could  not 
be  an  inspection  of  every  can  in  700  cases  at  the  place  to  which  they 
were  to  be  shipped.  But  whatever  inspection  was  to  be  made  could 
have  been  done  as  well  at  the  place  from  which  the  goods  were  ship- 
ped as  at  the  point  of  destination,  and  it  is  mainly  a  question  of  con- 
venience to  the  respective  parties  as  to  where  it  shall  be  made.  If  they 
determine  that  by  their  contract  it  must  control,  and  if  it  is  silent  as 
to  inspection,  but  is  as  clear  as  this  is  as  to  delivery,  any  inspection 
that  is  desired  before  payment  must  be  made  before  or  at  the  time  of 
delivery,  when  the  terms  are  cash.     *     *     * 

Judgment  reversed,  and  a  new  trial  awarded,  the  costs  to  be  paid 
by  the  appellee. 


LOUISVILLE  LITHOGRAPHIC  CO.  v.  SCHEDLER. 

(Court  of  Appeals  of  Kentucky,  1901.     63  S.  W.  8,  23  Ky.  Law  Rep.  465.) 

GuFFY,  J.^^     It  is  alleged  in  the  petition  that  the  defendant  (now 

appellant)  was  indebted  to  the  plaintiff  in  the  sum  of  $72.75  for  goods, 

etc.,  sold  and  delivered  to  the.  defendant  by  plaintiff,  as  shown  by  an 

account  filed,  which  is  as  follows : 

Dec.  27,  "97.     Des.  Pickaniny  cigar  label $14  00 

Jan.  25,  '98.     Stonework.  Pickaniny  label  and  proving  six  colors 58  00 

Boxing  stones 75 

$72  75 

The  answer  of  the  defendant  is  a  denial,  in  eft'ect,  of  the  purchase 
of  the  articles  claimed,  or  of  the  promise  to  pay  for  the  same.  In  the 
second  paragraph  it  is  alleged  that  the  plaintiff  undertook  to  make,  de- 
sign, and  prepare  a  stone  for  the  defendant,  whereon  it  could  manu- 
facture, make,  and  print  lithograph  labels  for  a  cigar  known  as  the 
"Little  Alabama  Coon's  Cigar,"  and  that  it  was  agreed  that  the  same 
should  be  made  in  accordance  with  the  design  theretofore  prepared, 
and  that  plaintiff  did  make  a  special  stone,  and  sent  the  same  to  the 
defendant  "C.  O.  D."  (collect  on  delivery),  so  wrapped  up  and  con- 
cealed that  it  could  not  examine  the  same ;  that  defendant  endeavored 
to  obtain  from  plaintiff  permission  to  examine  the  same,^^  with  the 
announcement  on  its  part  that  it  would  pay  the  full  value  thereof,  and 

3  2  Part  of  the  opinion  is  omitted. 

33As  to  the  duty  of  an  express  company  to  allow  inspection  of  goods  sent 
C.  O.  D.,  see  Wiltse  v.  Barnes.  46  Iowa,  210  (1877).  As  to  the  duty  of  a  car- 
rier to  allow  inspection,  in  general,  see  Williston,  Sales,  §  478. 


Sec.  5)  INSPECTION 


42: 


take  the  same  from  the  express  oftice,  if  it  came  up  to  the  agreement, 
and  was  in  accordance  with  the  design,  but  that  the  plaintiff  refused 
to  allow  the  same  to  be  examined  or  inspected,  and  refused  to  allow 
the  defendant  to  see  the  same  at  all,  hence  defendant  refused  to  take 
it ;  that  defendant  furnished  the  stone  to  plaintiil  to  make  the  design, 
and  that  the  same  was  worth  ^3.35.  It  was  further  alleged  that,  by 
reason  of  the  failure  and  refusal  of  the  plaintiff  to  make  and  deliver 
said  stone  according  to  agreement,  defendant  was  greatly  damaged  and 
delayed,  and  that  defendant  was  damaged  in  the  sum  of  $250,  for 
which  it  prayed  judgment.  It  was  also  alleged  in  an  amendment  that 
the  package  sent  by  express  as  aforesaid  was  not  of  the  kind  nor  was 
the  workmanship  what  was  ordered  by  the  defendant,  and  the  same 
was  not  sent  in  accordance  with  the  agreement,  or  in  accordance  with 
what  was  contemplated  by  the  agreement,  between  the  parties ;  that  it 
was  not  agreed  or  contemplated  that  the  package  should  be  sent  sealed 
or  concealed  or  marked  "C.  O.  D.,"  and  that  according  to  the  agree- 
ment between  the  parties,  and  the  custom  between  them,  packages  had 
been  sent,  and  this  one  was  to  be  sent,  with  the  understanding  that  it 
was  to  have  an  opportunity  of  examining  same  before  payment.  Aft- 
er the  issues  were  made  up,  and  proof  taken,  the  court  instructed  the 
jury  peremptorily  to  find  for  plaintiff  the  amount  claimed,  and  to  dis- 
miss the  defendant's  counterclaim,  and,  the  appellant's  motion  for  a 
new  trial  having  been  overruled,  it  prosecutes  this  appeal. 

The  grounds  relied  upon  for  a  new  trial  are — First,  that  the  verdict 
was  contrary  to  law ;  second,  that  it  was  contrary  to  the  evidence ; 
third,  because  the  court  erred  in  giving  the  peremptory  instruction  at 
the  conclusion  of  the  defendant's  testimony. 

It  appears  from  the  testimony  in  this  case,  and  from  the  letters  pass- 
ing between  the  parties  filed,  that  the  appellant  is  a  lithographic  com- 
pany in  Louisville,  the  business  of  which  is  to  obtain  what  is  called 
"lithographic  stones,"  so  prepared  that  it  may  print  or  make  a  certain 
design,  and  that  it  had  a  contract  with  a  certain  company  to  furnish 
to  it  a  large  number  of  cigar  labels  of  the  kind  mentioned  in  the  plead- 
ings, which  had  to  be  of  a  proper  stamp,  color,  etc.,  and  for  which  ap- 
pellant had  prepared  a  sketch.  It  appears  that  appellant  had  con- 
demned several  proofs  furnished  to  it  by  appellee,  who  resided  in  New 
York  or  New  Jersey,  but  finally  a  proof  was  sent  that  was,  in  sub- 
stance, "O.  K.'d"  by  appellant,  but  in  the  "O.  K."  letter  it  was  stated 
in  effect  that  appellee  should  remember  that  the  same  should  be  "A 
No.  1,"  as  mentioned  in  former  letters.  It  further  appears  that  some 
correspondence  had  taken  place  between  the  parties  in  which  plaintiff 
had  demanded  that  a  payment  should  be  forwarded  to  him  for  the 
work,  which  defendant  declined  to  do,  and  pretty  soon  thereafter 
plaintiff  expressed  the  stone.  From  the  letter  it  appears  that  plaintiff 
was  directed  to  forward  the  stone  by  express,  but  there  was  nothing 
in  the  letter  indicating  that  it  was  to  be  forwarded  "C.  O.  D.,"  al- 


426  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

though  about  the  time  of  the  writing  of  the  letter  in  question  by  the 
appellant  the  plaintitt  had  written  that  he  would  ship  it  "C.  O.  D." 

The  contention  of  appellee  is  that  he  was  entitled  to  ship  the  stone 
in  question  "C,  O.  D.,"  and  that  it  was  the  duty  of  the  appellant  to 
pay  the  charges  and  accept  the  same.  He  also  contends  that  appellant 
never  asked  him  to  be  allowed  to  examine  the  package  sent,  while  ap- 
pellant's contention  is  the  reverse.  It  is  contended  for  appellee  that 
the  universal  custom  and  law  is  that  the  purchaser  must  pay  for  the 
goods  on  delivery,  unless  by  agreement  time  is  to  be  given.  This  con- 
tention may  be  true,  but  it  does  not  follow  that  a  party  in  New  York 
may,  when  a  party  in  Louisville  has  purchased  a  particular  article, 
send  the  same  so  concealed  that  it  cannot  be  examined,  marked  "C.  O. 
D." ;  thus  requiring  the  purchaser  to  pay  for  an  article  which  he  has 
not  had  any  opportunity  to  examine,  and  determine  whether  it  is  the 
article  purchased  by  him  or  not.  Under  all  of  the  facts  and  circum- 
stances proven  in  this  case,  we  do  not  think  that  appellant  was  neces- 
sarily bound  to  accept  the  express  package  and  pay  for  the  same  and 
the  question  as  to  whether  he  should  have  done  so  or  not  should  have 
been  submitted  to  the  jury.     *     *     * 


CREAM  CITY  GLASS  CO.  v.  FRIEDLANDER. 

(Supreme  Court  of  Wisconsin,  1S93.     84  Wis.  53,  54  N.  W.  28,  21  L.  R.  A. 
135,  36  Am.  St.  Rep.  895.) 

Action  for  money  had  and  received.  Plaintiff  company  manufac- 
tures glass  at  Milwaukee.  They  entered  into  the  following  contract 
with  defendant  September  4,  1890: 

"Chicago,  September  4th,  1890. 

"Cream  City  Glass  Company :  Sold  to  you  about  one  hundred  and 
fifty  (150)  tons  Muspratt  Bros.  &  Huntley's  48  per  cent,  carbonated 
soda  ash  for  shipment  by  steamers  from  Liverpool,  monthly,  in  about 
equal  parts,  during  the  months  of  October,  November,  and  December, 
of  the  current  year,  (about  fifty  tons  monthly,)  at  $1.65  per  100  net, 
invoice  weights,  cash  on  arrival,  against  delivery  of  documents,  less 
one  per  cent.,  accidents  to  factory,  in  transit,  or  force  majeure  ex- 
cepted. Subject  also  to  changes,  if  any,  in  United  States  tariff  laws 
during  pendency  of  this  contract.  L.  M.  Friedlander. 

"No  change  in  tariff  impending.  L.  M.  F." 

Muspratt  Bros.  &  Huntley  were  manufacturers  of  soda  ash  at  Liv- 
erpool, England.  In  accordance  with  the  contract,  Friedlander  caused 
to  be  shipped  from  Liverpool  63  tierces,  or  113,390  pounds,  of  soda 
,  ash,  which  arrived  on  plaintiff's  side  track  at  its  factory  about  Decem- 
•  ber  13,  1890.  Plaintiff  paid  duties  and  freight  on  the  shipment,  also 
the  contract  price  of  the  goods,  amounting  in  all  to  $1,698.17.  The 
goods  were  unloaded  by  plaintiff'.    Upon  examination  the  material  ap- 


Sec.  5)  INSPECTION  427 

peared  to  have  been  damaged  by  water,  and  plaintiff  caused  the  fol- 
lowing letter  to  be  sent  to  defendant,  December  13,  1890: 

"Dear  Sir:  The  railroad  has  just  delivered  your  soda  to  us.  On 
opening  it,  we  find  it  absolutely  unfit  for  use.  The  casks  have  evident- 
ly been  under  water  until  over  half  of  the  soda  has  soaked  away.  We 
wish  you  would  come  up  and  see  it  at  once. 

"Very  truly  yours,  Cream  City  Glass  Co." 

On  December  19,  1890,  plaintiff  gave  to  defendant  personally  the 
following  notice : 

"Dear  Sir :  Please  take  notice  that  the  shipment  of  soda  ash  made 
by  you  and  received  by  us  on  or  about  the  10th  day  of  December, 
1890,  under  your  contract  of  September  4th,  1890,  amounting  to  about 
sixty-three  casks,  was  found  to  be  wholly  unfit  for  the  uses  and  pur- 
poses for  which  it  was  purchased.  We  therefore  notify  you  that  we 
hereby  rescind  the  said  sale,  and  hereby  offer  to  return  to  you  the  said 
soda  ash.  We  further  notify  you  that  said  soda  ash  is  now  at  our 
factory,  subject  to  your  order,  and  that  we  hereby  demand  immediate 
repayment  to  us  of  the  purchase  price  paid  by  us  therefor. 

"Respectfully  yours,  Cream  City  Glass  Co. 

"Richard  Ogden,  Sc." 

Evidence  was  introduced  tending  to  show  that  the  soda  ash  was  not 
suitable  for  the  manufacture  of  glass,  and  contained  but  34  per  cent, 
of  alkali,  instead  of  48  per  cent.  The  evidence  showed,  however,  that 
the  ash  was  of  some  commercial  value,  though  not  as  much  as  it  would 
have  been  worth  had  it  contained  48  per  cent,  of  alkali. 

Friedlander  refused  to  receive  the  property  back,  and  in  the  latter 
part  of  January  or  first  part  of  February,  1891,  the  plaintiff  made  a 
practical  test  of  the  material,  by  using  about  6  tierces  thereof,  amount- 
ing to  1,500  or  1,600  pounds,  in  one  of  its  furnaces,  mixing  it  with  the 
other  necessary  materials,  and  endeavoring  to  make  glass.  Plaintiff 
claims  that  the  test  showed  that  glass  could  not  be  made  from  the  ash. 
There  was  evidence  tending  to  show  that  it  was  necessary  to  use  this 
amount  to  make  a  practical  test  of  the  material. 

Upon  the  question  of  the  effect  of  this  test  upon  the  plaintiff's  right 
of  rescission  the  trial  judge  charged  the  jury  as  follows:  "If  you  find 
from  the  evidence  that  the  plaintiff,  in  making  such  test,  used  more  of 
the  soda  ash  in  question  than  was  absolutely  necessary  to  determine 
its  merchantable  quality,  or  whether  it  was  fit  and  proper  for  the  uses 
for  which  it  was  bought  and  sold,  or  whether  it  was  in  accordance 
with  the  contract,  or  if  you  find  that  it  was  unnecessary  to  make  such 
test,  then  such  act  is  inconsistent  with  such  rescission,  and  you  will 
find  for  the  defendant;  or,  if  you  find  from  all  the  facts  and  circum- 
stances in  the  case  that  the  plaintiff,  after  such  election  to  rescind,  did 
any  act  inconsistent  with  the  ownership  of  the  defendant,  then  you 
will  find  for  the  defendant."    To  which  charge  defendant  excepted. 

There  was  a  verdict  and  judgment  for  plaintiff  for  the  full  amount 


428  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

of  the  purchase  money,  freight,  and  duty  paid,  from  which  defendant 
appeals. 

WiNSLOW,  J.  ^*  (after  stating  the  facts).  *  *  *  \Ve  shall  con- 
sider but  one  other  question  upon  this  appeal,  and  that  is  the  question 
of  the  effect  upon  the  rights  of  the  parties  of  the  use  of  six  tierces  of 
the  soda  ash  by  the  plaintiff"  in  January  or  February  following  the 
sale,  for  the  purpose  of  testing  its  fitness  for  the  manufacture  of  glass. 
Assuming  that  the  evidence  is  sufficient  to  establish  an  implied  war- 
ranty that  the  soda  ash  in  question  was  of  a  quality  reasonably  fit  to 
be  used  in  the  manufacture  of  glass,  the  question  is,  could  the  plain- 
tiff, after  having  decided  that  the  material  was  wholly  unfit,  and  noti- 
fied the  defendant  of  its  decision  and  its  rejection  of  the  material,  pro- 
ceed to  use  three  quarters  of  a  ton  of  the  material  in  making  a  practi- 
cal test,  and  still  insist  on  its  right  of  rejection?  It  seems  clear  that 
the  plaintiff  was  entitled  to  a  reasonable  time  after  actual  receipt  of 
the  material  to  exercise  the  right  of  rejection  in  case  the  goods  did  not 
conform  to  the  contract.  Benj.  Sales  (6th  Ed.)  §  703.  If  this  fact 
could  only  be  ascertained  by  a  practical  test,  the  plaintiff  also  had  the 
right,  within  such  reasonable  time,  to  make  such  practical  test,  using 
only  so  much  of  the  material  as  was  reasonably  necessary  for  the  pur- 
pose, without  thereby  losing  the  right  of  rejection.  Benj.  Sales  (6th 
Ed.)  §  896;  Philadelphia  Whiting  Co.  v.  Detroit  White  Lead  Works. 
58  J\Iich.  29,  24  N.  W.  881.-^^  But  this  test  is  plainly  for  the  purpose 
only  of  enabling  the  purchaser  to  decide  whether  the  material  con- 
j  forms  to  the  contract.  If  the  fact  can  be  determined  by  inspection 
/alone,  the  test  is  not  necessary,  and  the  use  of  the  material,  therefore, 
I  clearly  unjustifiable. 

Now,  in  this  case  the  plaintiff's  officers  determined  at  once,  and  upon 
inspection  alone,  that  the  material  was  unfit  for  their  purposes,  and 
so  notified  the  defendant,  and  rejected  the  entire  lot.  They  did  not 
claim  to  need  any  test.  They  took  their  position  definitely.  After  that 
act  they  could  not  deal  w^ith  the  property  in  any  way  inconsistent  with 
the  rejection,  if  they  proposed  to  insist  upon  their  right  to  reject. 
Churchill  v.  Price,  44  Wis.   540.     They  must  do  no  act  which  they 

2*  Part  of  the  opinion  is  omitted. 

35  In  tliis  case  the  court  said:  "It  is  claimed  the  court  should  have  allowed 
the  plaintiff  to  recover  for  the  value  of  the  forty-two  barrels  used  or  sold  by 
defendant  in  testing  the  article  before  he  found  out  its  inferiority.  Had 
this  been  done,  simple  justice  would  have  required  the  allowance  to  the  de- 
fendant of  the  damages  it  sustained  in  the  use  it  made  of  the  plaintiffs  goods 
in  testing  the  quality,  and  this,  according  to  the  undisputed  testimony,  was 
at  least  $1000.  so  that  it  clearly  appears  the  plaintiff  has  not  been  in.iured 
by  the  action  of  the  court  upon  this  point  complained  of.  Certainly  the  de- 
fendant derived  no  benefit  from  the  amount  used.  The  article  appenrs  to 
have  been,  however,  one  which  must  be  used  before  its  (piality  can  be  ascer- 
tained. It  was  not  apparent  upon  examination,  and  in  such  case  it  is  the 
right  of  the  defendant  to  make  use  of  so  much  thereof  as.  under  all  the  cir- 
cumstances, may  become  actually  necessary  for  that  purpose,  without  lia- 
bility for  the  value  of  the  same  if  it  fails  in  the  test  to  fulfill  the  plaintiffs 
contract." 


Sec.  5)  INSPECTION  429 

would  have  no  right  to  do  unless  they  were  owners  of  the  goods. 
Benj.  Sales  (6th  Ed.)  §  703.    Under  these  rules  it  is  evident  the  plain- 
tiff had  no  right  to  use  up  a  quantity  of  the  material  several  weeks  aft- 
er the  rejection.     By  the  rejection  it  became  defendant's  property,  if 
such  rejection  was  rightful.     Plaintiff  had  no  right  to  use  any  part  of 
it.     It  is  claimed  that  the  use  was  simply  for  the  purpose  of  providing 
evidence  of  unfitness  for  the  purposes  of  the  trial  of  this  case;    but. 
one  has  no  right  to  use  his  opponent's  property  for  the  purpose  of  j 
making  evidence.    The  act  was  an  unmistakable  act  of  ownership,  and! 
entirely  inconsistent  with  the  claim  that  the  material  had  been  rejected/ 
and  was  owned  by  defendant.     It  follows  that  the  judgment  must  be 
reversed. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 


LINCOLN  V.  GALLAGHER. 

(Supreme  .Judicial  Court  of  Maine.  18S7.     79  Me.  189,  8  Atl.  883.) 

This  was  an  action  of  assumpsit  for  damages  on  a  breach  of  con- 
tract for  the  purchase  and  sale  of  thirty-five  sixty-fourths  of  the 
schooner  Annie  Gus,  of  Dennysville,  Elaine. 

The  defense  was  that  the  schooner  was  not  delivered  by  plaintiff 
to  defendant  in  a  reasonable  time,  and  that  the  defendant  had  no  op- 
portunity to  examine  the  vessel  in  order  to  see  that  she  was  in  good 
order,  as  stipulated  in  the  contract. 

Writ  was  dated  ^larch  20,  1885. 

The  case  was  tried  at  the  January  term,  A.  D.,  1886,  in  and  for  the 
county  of  Washington,  and  a  verdict  rendered  for  the  plaintiff. 

Pete;rs,  C.  J.  It  was  said  in  Howard  v.  IMiner,  20  Me.  330,  that, 
on  contract  for  the  delivery  of  specific  articles  which  are  ponderous 
or  cumbrous,  when  it  is  not  designated  in  the  contract,  and  there  is 
nothing  in  the  condition  and  situation  of  the  parties  to  determine  the 
place  of  delivery,  it  is  the  privilege  of  the  creditor  to  name  a  reason- 
able and  suitable  one ;  that  the  debtor  should  request  the  creditor 
to  select  the  place ;  and,  if  the  creditor  fails  to  do  so,  the  debtor  may 
appoint  the  place. 

In  the  case  at  bar  a  vessel  was  purchased  on  the  eastern  coast 
somewhere,  to  be  delivered  to  the  buyer  in  Portland.  Had  the  de- 
fendant provided  a  suitable  place  at  some  dock  or  wharf  which  could 
have  been  reached  by  the  use  of  reasonable  exertion,  the  delivery 
should  have  been  made  there.  The  purchaser,  after  notice,  failing 
to  provide  a  place,  we  think  the  seller  would  be  justified  in  tender- 
ing a  delivery  at  safe  anchorage  in  the  harbor.  He  should  not  be 
required  to  go  to  special  expense  to  himself  to  obtain  a  place  at  the 
wharf  or  upon  the  shore. 

By  the  bill  of  exceptions  examined  with  the  judge's  charge  we  find 
that  a  controversy  arose  between  the  parties  over  the  requirement  oi 


U30  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

the  purchaser  that  the  seller  should  go  to  the  expense  himself  of  plac- 
ing the  vessel  irt  a  dry-dock  in  order  that  the  seller  could  there  ex- 
amine her.  There  was  some  reason  to  expect  that  the  vessel  had  been 
ashore  on  her  voyage  to  Portland,  and  the  purchaser  desired  an  in- 
spection to  see  whether  she  had  escaped  injury  or  not. 

There  can  be  no  doubt  that,  in  offering  delivery,  the  seller  was 
under  obligation  to  afford  an  opportunity  to  the  purchaser  to  make 
the  examination.  But  any  expenses  to  be  incurred  thereby,  beyond 
what  would  be  necessary  in  putting  the  vessel  in  a  proper  place  for 
delivery,  would  fall  upon  the  buyer  and  not  upon  him.  The  seller 
was  under  no  obligation  to  incur  any  unusual  expense.  He  could  not 
be  called  upon  to  place  the  vessel  in  a  dry-dock.  He  tenders  the 
property  as  sound  according  to  the  agreement  under  which  he  acted. 
The  buyer  must  accept  or  reject  it  at  his  risk.  Benj.  Sales,  §  695; 
Croninger  v.  Crocker,  62  N.  Y.  151. 

Exceptions  overruled. 

Walton,  Danforth,  Emery,  Foster,  and  Haskell,  JJ.,  con- 
curred. 


SECTION  6.— ACCEPTANCE 


GAYLORD.  MFG.  CO.  v.  ALLEN. 
(Court  of  Appeals  of  New  York,  1873.     53  N.  Y.  515.) 

This  action  was  brought  by  plaintiff",  as  assignee  of  the  Chicopee 
]\Ialleable  Iron  Works,  to  recover  a  balance  claimed  to  be  due  upon 
sale  to  Richard  L.  Allen,  defendant's  intestate,  of  a  quantity  of  mal- 
leable iron  castings.  The  answer  set  up  as  a  counter-claim  a  breach 
of  contract  as  to  time  of  delivery,  and  a  warranty  of  quality  and 
breach  thereof.  The.  reply  denied  the  warranty,  alleged  acceptance, 
and  that  all  delays  were  occasioned  by  the  neglect  of  defendant  to 
furnish  patterns  as  agreed.  The  facts  sufficiently  appear  in  the 
opinion. 

Allen,  J.^®  Whether  the  contract  was  made  before,  or  on  or  after 
the  7th  of  January,  1865,  is  not  material ;  or  whether  it  rested  partly 
in  parol  and  partly  in  writing,  or  otherwise.  It  would  seem  from  the 
evidence  that  the  principal  negotiation  was  verbal,  at  a  personal  in- 
terview between  the  agents  of  the  contracting  parties  at  the  works- 
of  the  plaintiff  at  Chicopee  and  at  Northampton,  the  parties  visiting 
the  latter  place  to  inspect  one  of  the  machines  for  which  castings  were 
wanted,  at  which  interview  the  referee  was  authorized  to  infer  from 

8  6  Part  of  the  opinion  is  oniitted. 


Sec.  6)  ACCEPTANCE  431 

the  evidence  that  the  character,  description  and  quality  of  the  cast- 
ings, and  the  purposes  for  which  they  would  be  wanted,  were  under- 
stood by  the  parties ;  and  that  they  parted,  leaving  nothing  but  the 
terms  or  prices  at  which  the  plaintiff  would  contract  to  furnish  them 
undetermined. 

The  evidence  is  that,  at  parting,  the  representative  of  the  Chicopee 
Malleable  Iron  \\'orks,  the  contracting  party,  and  to  whose  obliga- 
tions and  rights  the  plaintiff  has  succeeded,  was  requested  by  the 
representative  of  defendant's  intestate  to  inform  him  by  letter  the 
terms  on  which  the  company  would  take  the  contract  or  do  the  work. 
The  letter  was  written  on  the  7th  of  January,  stating  the  price  per 
pound  at  which  the  castings  would  be  made,  and  promising,  if  an  or- 
der should  be  given,  to  put  the  patterns  in  the  works  as  soon  as 
they  were  received,  and  stating  that  the  writer  had  no  doubt  that  the 
first  delivery  would  be  made  as  required,  and  that  monthly  deliveries 
would  be  continued,  and  promising  to  make  every  exertion  to  complete 
the  order  as  desired,  concluding  with  a  statement  that,  in  all  proba- 
bility, the  company  would  be  able  to  meet  every  requirement,  and  ex- 
pressing a  hope  to  receive  the  order,  and  promising  prompt  attention. 
The  reply  to  this  was  an  order,  under  date  of  10th  of  January,  for 
a  large  number  of  castings  of  different  descriptions  and  weights,  with 
a  specification  of  the  date  and  times  at  which  they  would  be  wanted, 
and  promising  to  send  most  of  the  patterns  the  next  morning  and 
the  balance  in  a  few  days,  except  those  for  a  pony  machine,  which 
would  not  be  ready  until  spring,  the  order  concluding  with  the  ex- 
pression of  a  hope  that  the  company  would  be  able  to  furnish  the  cast- 
ings ordered  in  quantities  according  to  the  date  specified,  and  of 
suitable  quality.  But  following  the  signature  to  the  order,  the  fol- 
lowing note  is  added:  "The  above  to  be  at  sixteen  cents  (16c.)  per 
lb.,  as  agreeable  to  your  letter  of  January  7,  1864,  and  to  be  of  the 
best  quality  and  suitable  to  the  purpose  designed."  No  answer  was 
made  to  this  order,  in  writing  or  verbally,  so  far  as  appears ;  but 
the  contracting  company — hereafter  called  the  plaintiff,  as  the  plain- 
tiff' has  taken  its  place,  under  the  contract — proceeded  on  receipt  of 
the  patterns  to  manufacture  and  furnish  the  castings. 

Whether  the  agreement  was  consummated  by  the  letter  of  the  7th 
of  January,  fixing  the  price  as  found  by  the  referee,  or  by  that  of 
the  10th  of  January,  acceding  to  the  terms  and  ordering  the  castings, 
is  not  material.  There  is  no  dispute  that  the  contract  was  made  sub- 
stantially as  found  by  the  referee.  Whether  the  addendum  to  the  let- 
ter of  the  defendant's  intestate  is  or  is  not  a  part  of  the  contract,  the 
legal  effect  is  the  same.  The  referee  has  not  found  that  there  was 
any  warranty,  express  or  implied,  of  the  quality  of  the  castings,  or 
that  they  should  be  suitable  to  the  purpose  for  which  they  were  de- 
signed, and  so  far  as  appears,  was  not  requested  to  find  such  fact. 
There  is  no  ground  for  complaint  that  the  castings  were  not  of  the 


432  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

best  of  iron,  and  of  the  best  quality  as  castings,  after  they  were  fin- 
ished. The  only  objection  to  them  was,  that  they  were  not  well  or 
sufficiently  annealed,  and  were  not  for  that  reason  suitable  for  the 
purpose  for  which  they  were  required,  or  could  not  as  readily  or  prof- 
itably be  wrought  and  applied  to  such  purposes  as  if  they  had  been 
more  perfectly  or  thoroughly  annealed.  The  law  would  imply  pre- 
cisely that  which  the  defendant's  claim  made  a  part  of  the  express 
contract. 

This  was  an  executory  contract  for  the  manufacture  and  sale  of 
goods,  and  is  distinguished  from  a  sale  of  goods  in  existence,  defined 
and  specifically  sold.  A  contract  to  manufacture  and  deliver  an  ar- 
ticle at  a  future  day  carries  with  it  an  obligation  that  the  article  shall 
be  merchantable,  or  if  sold  for  a  particular  purpose,  that  it  shall  be 
suitable  and  proper  for  such  purpose.  Hargous  v.  Stone,  5  N.  Y.  73, 
and  cases  cited  by  Judge  Paige,  at  page  86;  Reed  v.  Randall.  29  X. 
Y.  358,  86  Am.  Dec.  305  ;  Dutchess  Co.  v.  Harding,  49  N.  Y.  321. 
Incorporating  into  the  agreement  the  obligation  which  the  law  im- 
plies would  superadd  nothing  to  the  contract,  or  vary  its  nature,  or 
affect  the  remedy  upon  it.  Sprague  v.  Blake,  20  Wend.  64.  What- 
ever agreement  there  was,  whether  expressed  or  implied,  was  a  part 
of  the  contract,  and  was  not  a  special  warranty  or  agreement  col- 
lateral to  it,  and  in  the  absence  of  fraud  or  artifice  in  inducing  an 
acceptance  of  the  article,  did  not  survive  the  execution  and  perform- 
ance of  the  contract. 

It  is  not  intended  to  express  an  opinion  as  to  the  rule  in  case  there 
were  latent  defects,  or  those- which  could  not  be  discerned  at  the  time 
of  the  delivery  or  acceptance  of  the  articles.  But  in  the  absence  of 
fraud  or  latent  defects,  an  acceptance  of  the  article  sold  upon  an  ex- 
ecutory contract,  after  an  opportunity  to  examine  it,  is  a  consent  and 
agreement  that  the  quality  is  satisfactory  and  as  conforming  to  the 
contract,  and  bars  all  claim  for  compensation  for  any  defects  that 
may  exist  in  the  article.  The  party  cannot,  under  such  circumstances, 
retain  the  property,  and  afterward  sue  or  counter-claim  for  damages, 
under  pretense  that  it  was  not  of  the  character  and  quality  or  de- 
scription called  for  by  the  agreement.  Dutchess  Co.  v.  Harding,  and 
Reed  v.  Randall,  supra,  and  cases  cited;  AlcCormick  v.  Sarson,  45 
N.  Y.  265,  6  Am.  Rep.  80.  The  dissents  in  the  latter  case  were  not  to 
the  principle  decided,  but  to  its  application  under  the  facts  and  cir- 
cumstances of  that  case. 

Although  the  referee  has  not  found,  in  terms,  that  the  quality  of 
the  castings  was  patent  and  easily  to  be  discerned  upon  inspection 
and  attempt  to  use  them,  and  that  the  defendant  had  full  opportunity 
to  and  did  examine  them  and  know  their  quality,  the  evidence  clearly 
shows  this  to  have  been  so,  and  the  fact  is  clearly  to  be  implied  from 
the  findings  of  the  referee.  It  was  the  duty  of  the  intestate  therefore 
to  return  the  defective  castings  at  once,  and  having  omitted  to  do  so, 


Sec.  6)  ACCEPTANCE  433 

he  must  be  deemed  in  law  to  have  waived  all  objections  to  them.  And 
the  result  is  the  same,  whether  the  agreement  as  to  the  quality  of  the\^ 
articles  is  implied  or  express.  But  the  report  of  the  referee  is  that  the 
intestate  did  object  to  some  of  the  castings,  and  they  were  reannealed 
by  the  plaintiff,  and  returned  to  and  accepted  by  the  intestate;  and 
that  the  residue  of  the  castings  were  accepted  and  used  without  objec- 
tion or  complaint.  This  was  a  waiver  of  all  objection  to  the  quality 
of  the  articles,  and  an  assent  to  accept  them  in  performance  of  the 
contract. 

The  report  might  have  gone  much  further.  The  evidence  would 
have  warranted  the  referee  in  finding  that  the  intestate  voluntarily, 
after  a  delivery  of  some  of  the  castings,  and  without  claiming  that 
they  were  not  of  the  quality  called  for  by  the  contract,  employed  the 
plaintiff  to  reanneal  them,  and  agreed  upon  the  price  to  be  paid,  and 
had  others  reannealed  elsewhere,  without  making  claim  upon  the 
plaintiff.  The  whole  case  shows  that  the  castings  were  regarded 
at  the  time  of  the  delivery  and  acceptance,  and  when  their  quality 
and  condition  was  well  known,  as  well  by  the  intestate  as  by  the 
plaintiff,  as  answering  the  description  and  call  of  the  contract;  and 
that  the  claim  that  they  did  not  do  so  was  an  afterthought,  when 
the  plaintiff  had  declined  to  accept  the  note  of  the  intestate  instead 
of  the  money  for  the  balance  due.  There  was  no  agreement  to  fur- 
nish the  castings  at  any  particular  time,  and  the  referee  has  so  found. 
^     ^     ^ 

The  judgment  must  be  affirmed.    All  concur;  Grove;r  and  Folge;r, 
JJ.,  concurring  in  result. 
Judgment  affirmed. ^^ 


DAY  et  al.  v.  POOL  et  al. 
(Court  of  Appeals  of  New  York.  1S73.  52  N.  Y.  416,  11  Am.  Rep.  719.) 
Pe;ckham,  J.^^  Action  for  damages  for  alleged  breach  of  warranty 
upon  a  contract  to  sell  and  deliver  to  the  plaintiffs  at  a  future  day, 
eighty  barrels  of  rock-candy  syrup.  The  contract  of  sale  with  war- 
ranty was  proved,  or  sufficiently  so  for  the  jury,  and  the  breach ;  but 
it  also  appeared  in  proof  that  the  plaintiffs,  after  receiving  the  syrup 
and  discovering  its  failure  to  comply  with  the  warranty,  proceeded 
to  use  it  in  their  business  of  wine  manufacture,  and  neither  returned 
nor  offered  to  return  it.  Upon  this  ground  the  plaintiffs,  on  defend- 
ants' motion,  were  nonsuited  at  the  circuit.  It  appeared  that  the  plain- 
tiffs required  and  desired  to  purchase  for  their  business,  in  a  western 
county,  an  article  of  rock-candy  syrup  "that  would  not  crystallize,  or 
the  sugar  fall  down"  in  its  use. 

3  7 As  to  the  case  of  latent  defects,  see  Zabrislde  v.  Central  Vermont  R.  R. 
Co.,  131  N.  Y.  72,  29  N.  E.  lOOG  (1S92). 
3  8  The  statement  of  facts  is  omitted. 
Wood  w.  Sales — 28 


434  OBLIGATIONS    OF    SELLER    AND   BLYER  (Ch.  4 

I  This  the  defendants,  merchants  in  the  city  of  Xew  York,  undertook 
[to  sell  to  them,  and  to  warrant  in  these  respects.  The  syrup  was  man- 
ufactured in  Boston;  but  samples  of  the  syrup  were  shown  at  the 
time  of  the  contract  to  the  plaintiffs.  It  was  to  be  ordered  by  defend- 
ants from  Boston.  It  was  all  to  be  sent  to  plaintiff's  by  the  15th  of 
October  then  next,  in  two  car-loads.  It  was  in  fact  delivered  in  small 
parcels,  at  different  times,  up  to  the  last  of  November. 

The  plaintiffs  complained  of  the  deficiency  of  the  syrup  at  various 
times  to  the  defendants  while  they  were  delivering  it ;  at  one  time 
sent  a  sample  of  that  already  received,  complaining  of  its  deficiency; 
and  the  defendants  promised  to  correct  it  (though  they  insisted  it  was 
then  sound).  If  not,  they  could  "do  it  at  the  end."  The  plaintiffs  paid 
for  the  syrup  in  full  before  suit. 

I     The  question  presented  is,  did  the  plaintiffs'  claim  for  damages  sur- 

jvive  their  acceptance  and  use  of  the  syrup,  or  were  they  bound  to  re- 

/turn  or  offer  to  return  the  defective  syrup  as  soon  as  its  deficiency  was 

discovered  ?    In  other  words,  were  they  bound  to  rescind  the  contract, 

or  could  they  use  the  syrup  and  rely  upon  their  warranty? 

There  seems  very  little  authority  upon  this  precise  point  in  this 
State,  viz.,  as  to  an  executory  sale,  with  warranty  as  to  the  quality  of 
the  article  contracted  for. 

It  is  well  settled  that  upon  a  sale  and  delivery  in  presenti  of  goods 
with  express  warranty,  if  the  goods  upon  trial  or  full  examination 
turn  out  to  be  defective,  and  there  is  a  breach  of  the  warranty,  the 
vendee  may  retain  and  use  the  property,  and  may  have  his  remedy 
upon  the  warranty  without  returning  or  oft'ering  to  return.  In  fact  it 
seems  to  be  regarded  as  settled  in  this  State,  though  perhaps  not  nec- 
essarily determined  in  any  case,  that  he  has  no  right  to  return  the 
goods  in  such  case,  unless  there  was  fraud  in  the  sale.  It  is  not  nec- 
essary to  decide  that  point  in  this  case.  Voorhees  v.  Earl,  2  Hill,  288, 
38  Am.  Dec.  588;  ^^luller  v.  Eno,  14  N.  Y.  597;  Rust  v.  Eckler,  41 
N.  Y.  488;  Foote  v.  Bentley,  44  N.  Y.  166,  4  Am.  Rep.  652;  see,  al- 
so, Story  Sales,  §  421,  and  cases  cited;  Thornton  v.  Wynn,  12  Wheat. 
183,  6  L.  Ed.  595. 

In  Massachusetts  and  in  ^Maryland  the  vendee  has  his  option  to  re- 
tain and  use  the  property  and  recoup,  or  sue  on  his  warranty ;  or  he 
may  return  it,  rescind  and  sue  for  the  consideration.  Dorr  v.  Fisher, 
1  Cush.  (Alass.)  271;  Bryant  v.  Isburgh,  13  Gray  (Mass.)  607,  74 
Am.  Dec.  655;  Hvatt  v.  Bovle,  5  Gill  &  J.  (Md.)  121,  25  Am.  Dec. 
276;  Franklin  v.  Long,  7  Gill  &  J.  (^Id.)  407;  Rutter  v.  Blake,  2  Har. 
&  J.  (^Id.)  353,  3  Am.  Dec.  550. 

In  addition  to  the  mere  contract  of  sale,  in  an  executory  as  well  as 
on  a  sale  in  presenti,  a  vendor  may  warrant  that  the  article  shall  have 
j:ertain  qualities.  This  agreement  to  warrant  in  an  executory  contract 
pf  sale  is  just  as  obligatory  as  a  warranty  on  a  present  sale  and  deliv- 
ery of  goods.     Is  there  any  reason  why  the  vendee,  in  such  executory 


Sec.  6)  ACCEPTANCE  435 

contract  of  sale,  may  not  rely  upon  that  warranty  to  the  same  extent 
as  upon  a  warranty  in  a  present  sale  and  delivery  of  property? 

Had  this  syrup  been  all  present  when  purchased,  and  the  plaintiffs 
(the  purchasers)  given  it  all  reasonable  examination,  v^^ithout  any  ac- 
tual trial,  there  could  have  been  no  legal  objection  to  the  defendants' 
warranty,  that  it  would  "not  crystallize,  or  the  sugar  fall  down,"  in  its 
use. 

Upon  such  a  warranty  the  plaintiffs  might  have  used  the  syrup  wnth- 
out  returning  it,  though  found  to  be  defective,  and  relied  upon  their 
warranty.  This  is  well-settled  law.  Why  might  they  not  likewise  rely 
upon  a  like  warranty  in  this  executory  contract? 

I  confess  rrrj^self  unable  to  see  any  controlling  reason  for  a  legal 
difference.  In  a  present  sale  with  warranty  it  is  expected,  of  course, 
that  the  vendor  incurs  the  peril  of  defects  being  developed  in  the  prop! 
erty  warranted,  after  its  delivery  to  the  purchaser.  He  warrants 
against  that.  He  does  precisely  the  same  upon  a  warranty  in  an  exec- 
utory contract. 

If  it  be  dangerous  to  allow  this  defect  to  be  discovered  by  the  pur- 
chaser in  the  one  case,  without  any  return  of  the  property,  it  is  no 
more  so  in  the  other. 

I  see  no  reason  why  the  same  rights  and  remedies  should  not  attach 
to  a  warranty  in  an  executory  as  in  a  present  sale,  and  no  greater. 
The  purchaser  in  an  executory  sale  could  not  rely  upon  a  warranty  as  \ 
to  open,  plainly  apparent  defects  any  more  than  he  could  in  a  sale  in 
presenti. 

The  appellant  greatly  relies  upon  the  nisi  prius  case  of  Hopkins  v. 
Appleby,  1  Stark.  388,  tried  before  Lord  EHenborough,  which  was 
an  action  for  goods  sold  and  delivered,  warranted  to  be  of  the  best 
quality  Spanish  barilla  and  salt  barilla.  The  defendant  had  consumed 
the  article  purchased,  in  eight  successive  boilings,  without  giving  no- 
tice of  its  defect  or  offering  to  return  it ;  and  he  attempted  to  show 
that  the  quality  could  not  be  ascertained  by  mere  inspection  without 
actual  experiment.  Proof  to  the  reverse  of  this  w-as  also  given.  The 
court  held  that  he  ought  to  have  given  notice  of  the  defect  in  an  early 
stage,  so  that  the  vendor  might  have  sent  there  and  ascertained  the 
cause  of  the  failure ;   and  he  disallowed  the  claim. 

That  case  has  not  been  followed  in  the  English  courts.  It  is  dis- 
tinctly overruled  in  Pouiton  v.  Lattimore,  9  Barn.  &  Cress.  259. 
There  the  buyer  neither  returned  the  seed  bought  nor  gave  any  notice 
of  its  defect;  but  as  there  was  an  express  warranty,  the  defects,  by 
the  breacli  thereof,  were  allowed  to  defeat  the  action  for  the  price. 
This  in  1829. 

Nor  does  it  seem  to  have  been  the  law  of  England  prior  to  that 
decision.  Filder  v.  Starkin,  1  H.  Bl.  17;  and  see  Story  Sales,  §  405, 
and  cases  there  cited ;   also  §  422,  and  note  2,  and  cases  cited. 

The  counsel  also  insists  that  the  cases  of  Reed  v.  Randall,  29  X. 
Y,  358,  86  Am.  Dec.  305;    McCormick  v.  Sarsons,  45  N.  Y.  265,  6 


436  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

Am.  Rep.  80,  and  cases  there  referred  to,  sustain  this  nonsuit.  Nei- 
ther was  a  case  of  warranty ;  and  each  one  that  speaks  upon  the  sub- 
ject, expressly  excepts  the  rule  there  laid  down  from  a  case  of  war- 
ranty as  inapplicable. 

In  Neafifie  v.  Hart,  4  Lans.  4,  there  was  cla' .  .d  to  have  been  an  im- 
plied warranty.  The  court  held  that  it  was  not  taken  out  of  the  rule 
of  the  above  cases. 

In  my  opinion,  where  there  is  an  express  warranty  the  purchaser, 
whether  in  an  executed  or  an  executory  sale,  is  not  bound  to  return 
the  property  upon  discovering  the  breach,  even  if  he  have  the  right  to 
do  so. 

See  the  cases  as  to  the  right  to  return  property  purchased  upon  war- 
ranty, before  cited;  also  those  from  Massachusetts  and  from  Mary- 
land ;  also  Alessenger  v.  Piatt,  3  Lans.  234.  All  agree  that  he  is  not 
bound  to  return  property  warranted  upon  discovering  the  breach. 
Reed  v.  Randall,  29  N.  Y.  358,  86  Am.  Dec.  305,  would  have  been 
decided  the  other  way  had  there  been  an  express  warranty  as  to  the 
quality  of  the  tobacco.  The  court  held  there  was  no  warranty,  and 
that  was  the  ground  of  the  judgment. 

Foot  V.  Bentley,  44  N.  Y.  166,  4  Am.  Rep.  652,  substantially  de- 
cides this  case.  The  action  in  respect  to  the  warranty  was  held  to  lie, 
though  the  tea  was  not  returned  when  its  defects  were  discovered; 
but  the  judgment  was  reversed  upon  another  ground.  Muller  v.  Eno, 
14  N.  Y.  597. 

The  maintenance  of  this  action  does  not  at  all  conflict  with  Hopkins 
V.  Appleby,  supra.  Here  notice  was  given  of  the  defects  in  the  syrup 
at  an  early  stage,  and  the  defendants  promised  to  attend  to  it.  They 
also  apparently  acquiesced  in  the  plaintiffs'  use  of  it,  virtually  prom- 
ising to  make  it  right  if  it  did  not  prove  to  be  sound  rock-candy  syrup. 
It  would  scarcely  be  just  now  to  allow  the  defendants  to  take  advan- 
tage of  the  non-return  of  the  syrup  under  such  circumstances. 

Of  course,  there  is  no  danger  of  fraud  and  false  claims,  even  where 
there  is  an  express  warranty,  when  notice  is  not  early  given  of  the 
defect.  It  leads  the '  buyer  into  temptation.  Hence,  juries  should 
listen  to  such  claims  (never  presented  when  their  falsity  could  have 
been  ascertained)  with  great  caution.  The  proof  thereof  should  be 
more  clear  than  if  the  buyer  had  acted  with  the  frankness  of  an  honest 
man  willing  to  allow  his  claims  to  be  tested.  This  is  so  declared  by 
courts,  while  the  rule  is  maintained  as  to  an  express  warranty  as  above 
stated. 

The  order  of  the  General  Term  granting  a  new  trial  is  therefore 
affirmed,  and  judgment  absolute  given  for  the  plaintiffs. 

Grove;r,  Folger,  and  Rapallo,  JJ.,  concur.  Church,  C.  J.,  and 
Allen  and  Andrews,  JJ.,  dissent. 

Order  affirmed  and  judgment  accordingly.^* 

39An  excellent  recent  case  on  the  right  of  the  buyer,  after  acceptance,  to 
sue  for  breach  of  an  express  warranty  is  North  Alaska  Salmon  Co.  v.  Hobbs, 


Sec.  6)  ACCEPTANCE  437 


MORSE  et  al.  v.  MOORE. 

(Supreme  Judicial  Court  of  Maine,  1891.     83  Me.  473,  22  Atl.  3C2,  13  L.  R.  A. 
224,  23  Am.  St.  Rep.  783.) 

Peters,  C.  J.*"  The  controversy  in  this  case  grows  out  of  an 
agreement  between  plaintiffs  and  defendant,  made  and  delivered  in 
this  state,  which  runs  as  follows :  "This  agreement,  made  and  entered 
into  this  seventh  day  of  January,  1888,  by  and  between  Morse  &  Saw- 
yer, of  Bath,  Maine,  of  the  first  part,  and  Warner  Moore,  of  Rich- 
mond, Va.,  of  the  second  part,  witnesseth :  That  the  said  parties  of 
the  first  part,  for  and  in  consideration  of  the  sum  of  one  dollar  to 
them  in  hand  paid,  the  receipt  whereof  is  hereby  acknowledged,  do 
hereby  sell  and  agree  to  deliver  at  their  wharves  at  Water  Cove,  (Cape 
Small  Point,  opposite  Burnt  Coat  island,  as  seen  in  Coast  Chart  No. 
6,  from  four  to  six  miles  west  of  Seguin  Island  lighthouse,)  Maine, 
after  the  ice  has  become  twelve  inches  in  thickness,  of  good  quality, 
during  the  months  of  January  or  February,  1888,  two  thousand  tons 
of  good,  clear,  merchantable  ice,  not  less  than  twelve  inches  in  thick- 
ness, to  be  weighed  by  a  sworn  weigher,  with  all  the  proper  fitting 
material  necessary  for  the  voyage  included,  at  the  price  or  rate  of 
forty  cents  per  ton  of  two  thousand  pounds.  Each  cargo  to  be  paid 
for  on  presentation  of  sight  draft  or  note  for  thirty  days  or  sixty 
days,  as  may  suit  party  of  second  part,  for  the  amount  accompanying 
bill  of  lading  and  weigher's  certificate  of  said  cargo.  Cakes  to  be 
twenty-two  by  thirty  inches." 

The  ice  delivered  under  this  contract  was  shipped  to  Richmond,  Va., 
where  the  defendant  resides,  to  be  sold  in  that  market  to  his  custom- 
ers. It  was  to  be  paid  for  according  to  its  weight  and  quality  at  the 
port  of  shipment  in  Maine,  any  deterioration  of  the  article  during 
transit  being  at  the  risk  of  the  purchaser. 

The  first  question  submitted  to  the  jury  was  whether  the  ice  had 
been  accepted  by  the  defendant  or  not,  and  that  was  decided  in  favor 
of  the  plaintiffs. 

That  brought  up  the  question  whether,  having  accepted  the  ice,  the 
defendant  could  rely  on  a  breach  of  the  warranty  of  the  quality  of 
the  ice  to  reduce  the  claim  of  the  plaintiff,  who  sues  in  this  action  of 
indebitatus  assumpsit  for  the  contract  price ;  the  defendant  alleging 
that  the  ice  was  not,  at  the  time  and  place  of  delivery  in  Maine,  of 
the  quality  called  for  by  the  contract. 

The  judge  presiding,  being  of  the  impression  that  such  a  defense 
might  be  admissible  in  case  of  an  executed  agreement  containing  war- 
ranty, but  not  where  the  agreement  is  executory,  ruled  out  the  de- 
fense as  a  matter  of  law.    It  is  to  be  noticed  that  the  ruling  was  with- 

Wall  &  Co.,  159  Cal.  380,  113  Pac.  870,  120  Pae.  27,  35  L.  R.  A.  (N.  S.)  501 
(1911). 
4  0  Tlie  statement  of  facts  and  part  of  ttie  opinion  are  omitted. 


438  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  -4 

out  qualification,  admitting  of  no  inquiry  into  the  circumstances  in 
which  the  ice  was  accepted.  It  determines  that  an  acceptance  in  a 
case  of  this  kind  (in  the  absence  of  fraud,  of  course)  absolutely  ter- 
.minates  the  obligation  of  the  vendor.  The  judge  further  ruled  that 
r'when  the  defendant  took  [that  is,  by  a  hired  carrier]  the  property 
'and  carried  it  away  the  property  passed  to  him." 

Our  examination  of  this  question  leads  us  to  the  conclusion  that  the 
position  of  the  defendant  was  well  taken,  and  that  the  alleged  defense 
should  have  been  permitted  to  him. 

That  there  is  a  warranty  or  a  condition  precedent  amounting  to 
warranty  in  the  contract,  there  can  be  no  doubt.  Such  a  warranty  will 
be  found  to  be  variously  characterized  in  the  books  as  executory  war- 
ranty, a  condition  precedent  amounting  to  warranty,  in  the  nature  of 
warranty,  with  the  effect  of  warranty,  equal  to  warranty,  and  the  like. 
It  is  immaterial,  for  present  purpose,  whether  it  be  regarded  as  an  ex- 
press warranty  or  an  express  condition  implying  warranty,  as  the  ef- 
fect must  be  the  same.  One  kind  within  its  limit  is  not  a  more  po- 
tential ingredient  in  a  contract  than  the  other,  the  difference  between 
them  being  only  in  the  style  of  agreement  to  which  they  may  be  an- 
nexed. An  express  warranty  may  be  also  special,  however.  It  is  now 
well  settled  by  the  authorities  generally — our  own  cases  included — 
that  a  sale  of  goods  by  a  particular  description  of  quality  imports  a 
warranty  that  the  goods  are  or  shall  be  of  that  description ;  a  warran- 
ty which  becomes  a  part  of  the  contract  if  relied  upon  at  the  time  by 
the  purchaser.  Bryant  v.  Crosbv,  40  j\Ie.  9;  Randall  v.  Thornton, 
43  Ale.  226,  69  Am.  Dec.  56;  Hillman  v.  Wilcox,  30  Ale.  170;  Gould 
V.  Stein,  149  Mass.  570,  22  n!  E.  47,  5  L.  R.  A.  213,  14  Am.  St.  Rep. 
455,  and  cases  cited.  Here  there  is  a  clear  description  of  both  the 
kind  and  quality  of  the  ice, — the  quality  to  be  merchantable. 

It  was  conceded  at  the  trial  that  the  position  relied  on  by  the  defense 
would  be  legitimate  were  it  an  executed,  instead  of  executory,  con- 
tract that  contained  the  warranty.  \Miy  should  there  be  the  difference  ? 
Certain  early  New  York  cases,  which  will  be  further  considered  here- 
after, by  which  the  rule  given  at  the  trial  is  more  or  less  supported, 
give  as  a  reason  for  the  rule  that  in  an  executory  contract  any  article 
of  a  particular  quality  may  be  tendered  in  the  performance  of  the  con- 
tract, and  the  vendee  must  see  if  the  article  agrees  with  the  terms 
of  the  contract,  while  in  an  executed  sale  the  agreement  is  that  a  par- 
ticular article  actually  delivered  possesses  the  quality  stipulated  for. 
This  undoubtedly  expresses  correctly  the  distinction  between  the  class- 
es of  contract,  but  it  does  not  impress  us  that  there  should  be  such  an 
essential  difference  in  their  effect. 

The  reason  is  not  palpable  why  the  vendee  in  the  one  case  more  than 
in  the  other  should  have  to  see  that  he  receives  only  merchantable  arti- 
cles when  a  delivery  is  made.  It  seems  inconsistent  that  the  warranty, 
which  is  a  part  of  either  contract,  should  terminate  at  delivery  in  one 
contract  and  not  in  the  other.    Each  vendor  makes  virtually  the  same 


Sec.  6)  ACCEPTANCE  439 

warranty,  and  the  two  vendors  at  the  point  of  deHvery  would  appear  to 
stand  upon  common  ground.  The  seller  in  an  executory  contract 
agrees  to  do  what  the  seller  in  an  executed  contract  has  already  done. 
When  he  tenders  the  articles  that  he  has  agreed  to  deliver,  such  articles 
become  particularized  and  identified ;  and  he  then  represents  that  such 
particular  and  identified  articles  possess  the  quality  stipulated  for  by  I 
his  executory  agreement.  The  terms  of  the  contract  of  sale  become j 
the  terms  of  the  sale.  The  condition  precedent  becomes  a  warranty. 
Prof.  Wharton  (Whart.  Cont.  §  564)  expresses  the  idea  in  these  words : 
"A  substantial,  though  partial  (defective)  performance  of  a  condition 
precedent,  followed  by  acceptance  on  the  other  side,  transmutes  the 
condition  precedent  into  a  representation  (implying  warranty,)  not  bar- 
ring a  suit  on  the  contract,  though  leaving  ground  for  a  cross-action  for 
damages." 

Executory  and  executed  contracts  are  very  much  alike  in  the  ele- 
ments that  enter  into  them.  There  are  executory  steps  in  all  executed 
contracts.  A  bargain  precedes  the  sale.  If  there  be  a  warranty,  that 
is  usually  first  a  part  of  the  bargain,  and  afterwards  of  the  sale.  So 
in  an  executory  contract  the  warranty  is  part  of  the  agreement  of  sale,  , 
and  at  delivery  a  part  of  the  sale.  Many  contracts  commonly  spoken 
of  as  executed  contracts  are  really  wholly  or  partially  executory.  All 
orders  for  goods,  whether  for  present  or  future  delivery,  are  of  an 
executory  nature.  All  sales  by  sample  are  such.  The  author  of 
Smith's  Leading  Cases  (8th  Ed.)  vol.  1,  pt.  1,  p.  339,  says  in  discussing 
this  distinction :  "Where  the  vendor  agrees  to  sell  goods  of  a  certain 
kind,  without  designating  or  referring  to  any  specific  chattel,  the  con- 
tract is  essentially  executory,  whether  it  purports  to  be  a  present 
transfer  or  a  mere  undertaking  to  deliver  at  a  future  period,  and  the 
right  of  property  does  not  pass  until  the  merchandise  is  delivered  to 
or  set  apart  for  the  purchaser."  Every  contract  is  executory  on  the 
one  side  or  the  other  until  the  party  has  done  what  he  has  agreed 
to  do. 

The  fact  of  acceptance,  however,  as  a  matter  of  evidence,  may  have 
great  weight  on  the  question  of  satisfactory  or  sufficient  performance.  ( 
In  the  first  place  it  raises  considerable  presumption  that  the  article  1 
delivered   actually   corresponded  with    the   agreement.      In   the   next  | 
place,  it  is  some  evidence  of  a  waiver  of  any  defect  of  quality,  even 
if  the  article  did  not  so  correspond;    evidence  of  more  or  less  force 
according  to  the  circumstances  of  the  case.    If  the  goods  be  accepted 
without  objection  at  the  time  or  within  a  reasonable  time  afterwards, 
the  evidence  of  waiver,  unless  explained,  might  be  considered  conclu- 
sive.    But  if,  on  the  other  hand,  objection  is  made  at  the  time,  and 
the  vendor  notified  of  the  defects,  and  the  defects  are  material,  the 
inference  of  waiver  would  be  altogether  repelled.     But  acceptance  ac- 
companied by  silence  is  not  necessarily  a  waiver.     The  law  permits 
explanation,  and  seeks  to  know  the  circumstances  which  induced  ac- 


440  OBLIGATIONS    OF    SELLER    AND   BUYER  (Cll.  4 

ceptance.  It  might  be  that  the  buyer  was  not  competent  to  act  upon 
his  own  judgment,  or  had  no  opportunity  to  do  so,  or  declined  to  do 
SO  as  a  matter  of  expediency,  placing  his  dependence  mainly,  as  he 
has  a  right  to  do,  upon  the  warranty  of  the  seller.  Upon  this  question 
the  facts  are  generally  for  the  jury,  under  the  direction  of  the  court. 

The  law  of  waiver  more  commonly  applies  to  things  that  are  not  es- 
sential to  a  substantial  execution  of  the  contract ;  often  such  as  re- 
late to  the  time,  place,  or  manner  of  performance,  or  that  affect  mere- 
ly the  taste  or  fancy,  perhaps,  and  are  such  departures  from  literal 
performance  as  do  not  bring  loss  or  injury  upon  the  purchaser.  Bald- 
win V.  Farnsworth,  10  Me.  414,  25  Am.  Dec.  252;  Lamb  v.  Barnard, 
16  Ale.  364. 

We  think  the  rule  invoked  by  the  defendant  a  just  one.  Speaking 
generally,  it  is  the  safer  rule  for  both  buyer  and  seller.  The  opposite 
rule  imposes  on  either  of  them  very  great  responsibility  and  risk.  It 
might  be  ruinous  to  a  vendee,  who  is  in  urgent  need  of  an  article,  not 
to  accept  it,  although  even  much  inferior  in  quality  to  the  description 
contained  in  the  contract.  Certainly  it  should  not  be  considered  a 
hardship  to  a  seller  to  require  of  him  a  compliance  with  his  contract, 
or  damages  for  his  non-compliance. 

The  present  case  illustrates  the  justness  of  the  rule,  if  the  facts  are 
proved  as  the  defendant  alleges  them.  The  plaintiff's  agreed  to  de- 
liver ice,  which  they  warranted  should  be  good,  clear,  and  merchanta- 
ble. Two  cargoes  were  loaded  for  shipment  to  a  southern  port.  De- 
fendant furnished  the  vessels,  though  they  were  probably  chartered  by 
the  plaintiffs  on  the  defendant's  account.  There  is  nothing  in  the 
charge  of  the  judge,  in  the  exceptions,  or  on  briefs  of  counsel,  intimat- 
ing that  the  defendant  ever  saw  the  ice,  either  by  agent  or  personally, 
until  it  arrived  in  Virginia,  or  that  he  was  notified  to  be  present,  or 
knew  of  the  delivery  at  the  time  of  it.  It  would  seem  to  be  a  rather 
stringent  construction  of  the  contract  that  the  defendant  must  watch 
the  loading  of  the  cargoes,  upon  the  penalty,  if  he  failed  to  do  so,  of 
having  to  pay  full  price  for  whatever  defective  ice  might  be  delivered 
behind  his  back,  after  he  had  taken  for  his  protection,  and  paying  for 
it  in  the  consideration  of  the  contract,  an  agreement  of  warranty  in 
such  positive  terms. 

Still  it  may  be  that  the  plaintiffs  could  legally  refuse  to  deliver  the 
ice  unless  the  defendant  after  notice  should  be  present  to  receive  it. 
The  cargoes,  after  reasonable  passages,  arrived  in  a  very  unmerchant- 
able condition.  There  was  no  lack  of  objection  or  protest  from  the 
defendant.  He  wrote  repeatedly,  and  telegraphed  the  plaintiffs,  ex- 
pressing his  disappointment,  and  asking  their  advice  as  to  the  disposi- 
tion of  the  ice.  But  no  satisfactory  answer  came.  What  should  he 
do?  There  was  no  possibility  of  reshipment,  nor  could  the  ice  be  pre- 
served in  that  climate  without  the  protection  that  his  own  ice-houses 
would  afford  for  such  purpose.  Storage  in  any  ordinary  manner  could 
not  possibly  save  the  property.    He  stored  the  ice,  and  sold  it  by  en- 


Sec.  6)  ACCEPTANCE  441 

terprising-  expedients  as  rapidly  as  possible.  He  alleges  that  it  was 
late  spring  ice,  of  poor  texture,  and  in  proximately  worthless  condi- 
tion when  shipped  from  Maine.  If  that  can  be  shown  by  witnesses 
and  in  court  at  the  home  of  the  plaintiffs,  it  would  seem  to  be  an  in- 
justice if  the  defendant  is  not  permitted  to  make  the  defense.  *  *  * 
Exceptions  sustained.*^ 


GINN  et  al.  v.  W.  C.  CLARK  COAL  CO. 

(Supreme  Court  of  Michigan,  1906.     143  Mich.  84,  lOG  N.  W.  867.) 

Carpenter,  C.  J.*-  Plaintiffs  and  defendant  entered  into  a  written 
contract  whereby  the  former  agreed  to  sell,  and  the  latter  to  buy, 
60  cars  of  coal — described  in  the  contract  as  Pine  Grove  coal — to  be 
delivered  two  cars  each  day,  commencing  October  15,  1902.  De- 
fendant received  19  of  these  cars,  and  refused  to  receive  other  cars, 
upon  the  ground  that  the  coal  shipped  was  not  Pine  Grove  coal. 
After  some  negotiations,  which  will  be  hereinafter  stated  with  more 
detail,  defendant  paid  for  the  coal  received,  and  refused  to  pay  dam- 
ages for  that  which  it  refused  to  receive.  Plaintiffs  brought  this  suit 
and  recovered  damages  in  the  court  below.     *     *     * 

Defendant  complains  because  the  trial  court  excluded  certain  tes- 
timony offered  by  it  for  the  purpose  of  proving  that  the  coal  rejected 
was  not  of  a  merchantable  quality.  The  trial  court  had  a  right  to 
understand  that  defendant  sought  to  introduce  this  testimony,  not 
for  the  purpose  of  reducing  damages,  but  solely  for  the  purpose  of 
justifying  its  rejection  of  the  coal.  As  this  court  reviews  upon  writs 
of  error  only  questions  raised  in  the  trial  court,  the  question  for 
our  determination  is:  Was  this  testimony  admissible  to  justify  the 
rejection  of  the  coal?  Defendant,  after  having  a  full  opportunity  to 
examine  the  coal,  notified  plaintiff's  that  they  rejected  the  same  for 
a  certain  specific  ground,  viz.,  the  coal  was  not  Pine  Grove  coal. 
Plaintiffs  had  a  right  to  act  upon  the  assumption  that  this  was  the 
only  ground  upon  which  defendant  relied,  and  it  would  be  unjust 
to  permit  defendant  to  rely  upon  other  grounds  on  the  trial  of  this 
case.  This  precise  question  was  determined  in  Little  John  v.  Shaw, 
159  N.  Y.  188,  53  N.  E.  810.  There  defendant  rejected  25  tons  of 
No.  1  cube  gambier,  which  it  had  agreed  to  purchase  from  plaintiff, 
"for  two  reasons,  first,  because  they  are  not  good  merchantable  qual- 
ity and  again  because  they  are  not  in  good  merchantable  condition." 
Upon  a  suit  brought  to  recover  damages  it  was  insisted  that  it  was  in- 
cumbent upon  plaintiff  "to  prove  that  all  the  terms  of  the  contract 
were  fulfilled  upon  their  part."     This  was  denied  by  the  court,  who 

41  See,  also,  Campion  v.  Marston,  99  Me.  410,  59  Atl.  548  (1904),  reported 
herein  ante,  p.  370. 

4  2  Part  of  the  opinion  is  omitted. 


442  OBLIGATIONS    OF    SELLER    AND   BUYER  (Ch.  i 

said  that  defendants,  by  "formally  stating  their  objections,  must  be 
held  to  have  waived  all  other  objections."     *     *     * 
Judgment  affirmed  with  costs. ■'^ 


DESCALZI  FRUIT  CO.  v.  WILLIAM  S.  SWEET  &  SON,  Inc. 

(Supreme  Court  of  Rhode  Lsland,  1910.     30  R.  I.  320,  75  Atl.  308,  27  L.  R.  A. 
[X.  S.]  9.32,  136  Am.  St.  Rep.  961.) 

Dubois,  C.  J.  This  is  an  action  of  assumpsit,  brought  by  the  plain- 
tiffs, copartners  in  trade,  doing  business  under  the  firm  name  of  the 
Descalzi  Fruit  Company,  and  all  of  Pittsburg,  in  the  state  of  Penn- 
sylvania, against  the  defendant,  a  corporation  of  the  state  of  Rhode 
Island,  located  at  Providence  therein,  to  recover  the  price  of  a  car 
load  of  peaches  sold  by  the  plaintiffs  to  the  defendant.  After  verdict 
for  the  defendant  in  the  superior  court,  the  case  was  brought  to  this 
court  upon  the  plaintiffs'  bill  of  exceptions. 

The  plaintiff's,  dealers  in  fruit,  having  a  place  of  business  in  the 
town  of  Fort  A'alley,  Ga.,  agreed  by  telegraph  to  deliver  to  the  de- 
fendant in  Providence  a  car  load  of  peaches,  known  as  "fancy  Belles 
and  Thurbers,"  at  $2.25  a  carrier.  The  telegrams  comprising  the 
agreement,  arranged  in  their  chronological  order,  are  as  follows :  De- 
fendant to  plaintiffs:  "July  11th,  1907,  Quote  price,  car,  fancy  red 
fruit  Belles  and  Thurbers."  Plaintiffs  to  defendant:  "J"b'  ^th. 
Wire  received  offer  fancy  Belles  Thurbers  to-morrow's  shipment 
$2.25."  Defendant  to  plaintiffs :  "July  12th.  Ship  car  fancy  stock 
your  price  want  best  colored  stock  possible."  Plaintiffs  to  defendant 
(night  message):  "F.  G.  E.  #18943  (443)  carriers  fine  Belles  and  few 
Elbertas."  Defendant  to  plaintiff's:  "July  13th.  Can't  use  Elbertas 
at  price  and  Belles  must  be  fancy  high  colored  expected  part  Thur- 
bers." Plaintiff's  to  defendant:  "July  13th.  Wire  received  just  15 
Elbertas  mostly  fancy  Belles  few  Thurbers  car  will  please  you."  When 
the  car  arrived  in  Providence  the  defendant  examined  the  peaches 
and  found  that  they  were  not  as  ordered,  and  immediately  wired  the 
plaintiffs  as  follows :  "July  16th.  Arrived  and  opens  unsatisfactory 
reject  car  because  quality  not  as  ordered  advise  directing  without 
delay  Boston  this  market  will  not  take  this  quality  satisfactory."  To 
which  the  plaintiff's  replied  as  follows :  "Car  yours  care  not  what 
you  do  wath  it  gave  you  best  colored  stock  possible  as  ordered  and 
hold  you  responsible  for  amount  draft."  Whereupon  the  defendant 
sent  this  final  dispatch  to  plaintiff's:  "\\'ill  not  accept  using  best  judg- 
ment for  you  forwarded  Boston." 

It  appears  that  before  sending  the  car  to  Boston,  !\Iass.,  the  de- 
fendant ascertained  that  Curtis  &  Co.,  commission  merchants  in  that 

43  Compare  Green  v.  Edgar,  21  Huu,  414  (ISSO) ;  Williams  Cooperage 
Co.  V.  Scofield,  115  Fed.  119,  53  C.  C.  A.  23  (1902). 


Sec.  6)  ACCEPTANCE 


443 


city,  sold  goods  for  the  plaintiffs,  and  thereupon  the  defendant  com- 
municated with  them,  advising  them  that  it  had  a  car  load  of  peaches 
which  could  not  be  disposed  of  in  the  Providence  market,  and  in- 
quired if  this  car  of  fruit  could  be  sold  in  the  Boston  market.  Re- 
ceiving an  affirmative  reply,  the  defendant  forwarded  the  car  to  Curtis 
&  Co.,  with  instructions  to  sell  the  peaches  for  the  benefit  of  the  plain- 
tiffs and  to  forward  the  proceeds  of  sale  to  them.  Curtis  &  Co.,  upon 
arrival  of  the  aforesaid  car,  sold  the  fruit  and  sent  the  proceeds  to 
the  plaintiff's,  who  declined  to  receive  the  same.  The  parties  have 
stipulated  that  the  following  facts  be  taken  by  the  court  as  proved 
for  the  purposes  of  this  decision : 

"(1)  The  goods  in  question  were  sold  by  Curtis  &  Co.,  of  Boston, 
to  whom  the  defendant  sent  the  goods,  for  the  sum  of  six  hundred 
and  thirty-eight  dollars  and  thirteen  cents  ($638.13). 

"(2)  The  aforesaid  Curtis  &  Co.  deducted  the  following  items  fron. 

the  gross  receipts  of  said  sale : 

Freight  from  Fort  Valley  to  Boston $362.63 

Expense  of  unloading  said  goods ^"^'^t 

Commission  of  Curtis  &  Company 44.67 

.$420.74 

"(3)  The  balance,  after  deducting  said  items,  to  wit,  two  hundred 
and  seventeen  dollars  and  thirty-nine  cents  ($21'7.39),  was  tendered 
to  said  plaintiffs  before  the  bringing  of  said  action  by  said  Curtis 
&  Co.,  and  also  by  said  defendant.  It  is  further  agreed  that,  assum- 
ing that  the  defendant  had  the  right  to  dispose  of  the  goods  through 
Curtis  &  Co.  as  aforesaid,  the  said  charges  of  Curtis  &  Co.  so  de- 
ducted as  aforesaid  are  reasonable  and  proper.  It  is  also  agreed  that 
the  said  defendant  has  never  received  any  benefit  or  interest  whatever 
from  the  use  of  the  aforesaid  two  hundred  and  seventeen  dollars  and 
thirty-nine  cents  ($217.39),  which  were  the  net  proceeds  of  the  sale.' 

The  plaintiff's  contend  that,  even  if  the  peaches  shipped  by  them 
were  not  of  the  quality  contracted  for,  the  defendant,  by  causing  the 
goods  to  be  resold  for  the  benefit  of  the  plaintiffs,  exercised  such  a 
dominion  over  them  as  to  constitute  an  acceptance  of  the  same.  The 
defendant  seeks  to  justify  its  conduct  in  causing  a  resale  of  the  plain- 
tiffs' goods  upon  two  grounds:  In  the  first  place,  to  protect  itself 
against  the  freight  charge ;  and,  in  the  second  place,  to  save  the  plain- 
tiff's from  a  total  loss  in  regard  to  said  fruit. 

It  is  proper  to  consider  the  circumstances  in  which  the  defendant 
found  itself.  It  was  midsummer  when  the  cargo  of  peaches,  from 
Georgia,  inferior  in  quality  to  those  for  which  the  defendant  had  con- 
tracted and  had  a  right  to  expect,  arrived  in  Providence,  where  there 
was  no  market  for  such  fruit.  The  defendant  forthwith  notified  the 
plaintiff  by  telegraph  of  its  refusal  to  accept  them  and  asked  for  in- 
structions concerning  the  disposal  of  the  peaches  in  Boston,  where 
there  was  a  market  for  that  grade  and  quality  of  fruit.    The  plaintiffs 


444  OBLIGATIONS    OF    SELLER    AND    BUYER  (Ch.  4 

refused  to  instruct  the  defendant  in  the  matter,  and  claimed  perform- 
ance of  their  part  of  the  contract.  The  defendant  confronted  this 
condition : 

A  car  load  of  perishable  goods,  abandoned  by  the  owner,  had  been 
left  in  its  charge  by  the  railroad  company,  which  looked  to  the  de- 
fendant for  payment  of  the  freight.  In  order  to  save  the  goods  and 
protect  the  owners  to  any  extent,  immediate  action  was  imperatively 
necessary.  Ample  notice  had  been  given  to  the  owners  without  avail. 
Evidently  they  had  doubts  as  to  the  sincerity  of  the  defendant's  re- 
fusal, and  were  too  far  away  to  investigate  for  themselves.  More- 
over, they  made  no  attempt  to  employ  any  agent  to  look  after  their 
interests  in  Providence. 

The  defendant  could  have  rested  upon  its  rights  and  remained  in- 
active, with  the  result  that,  unless  the  plaintiffs  changed  their  views 
regarding  the  matter  and  took  some  steps  looking  toward  the  disposi- 
tion of  the  fruit,  or  the  railroad  company  sold  the  same  to  pay  freight 
charges,  or  something  unlooked  for  intervened  to  prevent  it,  the 
peaches  would  have  perished  without  benefit  to  any  one.  In  the  ab- 
sence of  the  plaintiffs,  unrepresented,  the  defendant  having  knowledge 
of  the  existing  conditions,  and  having  the  goods  cast  upon  it  in  this 
emergency,  not  only  had  the  right  to  protect  itself  from  the  freight 
charges,  but  also  to  prevent  the  owners  from  needlessly  sacrificing 
their  goods  without  benefit,  and  at  a  total  loss  to  themselves,  with 
additional  freight  charges,  through  ignorance  and  obstinacy.  "It  not 
infrequently  happens  that  the  seller,  when  notified  that  the  goods  are 
not  in  conformity  with  the  contract  and  when  requested  to  remove 
them,  fails  to  do  so,  claiming  that  the  contract  has  been  properly  ful- 
filled. Under  these  circumstances  it  may  be  clearly  the  best  thing 
to  do,  from  a  business  standpoint,  for  the  buyer,  in  whose  possession 
the  goods  are,  to  sell  them  at  once  and  leave  the  question  whether 
the  goods  fulfilled  the  terms  of  the  contract  or  not  to  subsequent  de- 
termination. \\"here  goods  are  perishable,  or  expensive  to  keep,  or 
of  fluctuating  value,  any  other  course  is  attended  with  loss  to  one 
party  or  the  other.  Accordingly  it  has  been  held,  and  it  seems  rea- 
sonable, that  the  buyer,  though  refusing  to  take  title  because  the 
goods  are  not  what  he  bargained  for,  may,  after  notifying  the  seller 
of  his  rejection  and  requesting  him  in  vain  to  remove  the  goods,  re- 
sell them  on  account  of  the  seller."  Williston  on  Sales  (1909)  §  498. 
And  see  Rubin  v.  Sturtevant,  80  Fed.  930,  26  C.  C.  A.  259 ;  Hitch- 
cock v.  Griffin  &  Skellev  Co.,  99  Uich.  447,  58  N.  W.  373,  41  Am.  St. 
Rep.  624;    Barnett  &  Co.  v.  Terry  &  Smith,  42  Ga.  283. 

An  application  of  the  Golden  Rule  is  indicated  in  cases  like  the  pres- 
ent, and  for  such  application  the  defendant  ought  not  to  be  penalized 
through  a  technicality.  As  the  absent  plaintiff's  had  no  agent  to  take 
care  of  their  interests,  and  as  it  was  necessary  that  their  interests 
should  be  cared   for  to   save  them  from  loss,  the  defendant  had  a 


Sec.  6)  ACCEPTANCE  445 

right  to  act  as  agent  for  them  ex  necessitate  rei.  In  such  a  case  the 
utmost  dihgence  and  good  faith  will  be  exacted  from  the  person  who 
thus  elects  to  bear  the  burden  of  agency.  There  is  nothing  in  the  case 
at  bar  to  indicate  that  the  defendant  has  in  any  manner  fallen  short 
of  these  requirements.  The  defendant,  therefore,  was  justified  in 
forwarding  the  fruit  to  be  sold  for  the  benefit  of  the  plaintiffs,  and 
by  so  doing  did  not  accept  the  goods. 

As  it  appears  by  the  stipulation  hereinbefore  set  forth  that  the  net 
proceeds  of  the  sale  by  Curtis  &  Co.,  after  deducting  the  freight  and 
charges  therein  alluded  to,  were  tendered  to  the  plaintiffs  before  they 
brought  this  action,  and  also  that  the  defendant  has  never  received 
any  benefit  from  said  proceeds,  it  follows  that  the  plaintiffs  were  not 
entitled  to  a  verdict  for  any  sum  whatever  in  the  case  at  bar. 

The  plaintiffs'  exceptions  are  therefore  overruled,  and  the  case  is 
remitted  to  the  superior  court,  with  direction  to  enter  judgment  on  the 
verdict. 


446  EIGHTS   or   UNPAID   SELLER   AGAIKST   THE    GOODS  '  Ch.  5 

CHAPTER  V 
RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS 


SECTION  1.— LIEN 


BLOXAM   &   WARRINGTON  v.    SANDERS   et   al. 
(Court  of  King's  Bench.  1825.     4  Barn.   &   C.  941.) 

Trover  to  recover  the  value  of  a  quantity  of  hops  from  the  de- 
fendants. At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings, 
after  last  Trinity  term,  the  jury  found  a  verdict  for  the  plaintiffs, 
damages  £3000.,  subject  to  the  opinion  of  this  court  upon  the  fol- 
lowing case : 

The  plaintiffs  were  assignees  of  J.  R.  Saxby,  a  bankrupt  under 
a  commission  of  bankrupt  duly  issued  against  him  on  the  5th  of 
January,  1824.  The  act  of  bankruptcy  was  committed  on  the  1st 
of  November,  1823,  the  bankrupt  having  on  that  day  surrendered 
himself  to  prison,  where  he  lay  more  than  two  months.  The  de- 
fendants were  hop  factors  and  merchants  in  the  borough  of  South- 
wark.  Previous  to  his  bankruptcy  the  bankrupt  had  been  a  dealer 
in  hops,  and  on  the  7th,  16th,  and  23d  of  August  purchased  from 
the  defendants  the  hops  (among  others)  for  which  this  action  was 
brought.  Bought  notes  were  delivered  in  the  following  form:  "Mr. 
John  Robert  Saxby,  of  Sanders,  Parkes  &  Co.  T.  AL  Simmons,  eight 
pockets  at  155s.  8th  August,  1823."  Part  of  the  hops  were  weighed, 
and  an  account  of  the  weights  was  delivered  to  Saxby  by  the  de- 
fendants. The  samples  were  given  to  the  bankrupt,  and  bills  of 
parcels  were  also  delivered  to  him  in  which  he  was  made  debtor  for 
six  dift'erent  parcels  of  hops,  the  amount  of  which  was  i739. 

The  usual  time  of  payment  in  the  trade  was  the  second  Saturday 
subsequent  to  a  purchase.  Part  of  the  hops  belonged  to  the  defend- 
ants, and  part  they  sold  as  factors,  but  they  sold  all  in  their  own 
names,  it  being  the  custom  in  the  hop  trade  to  do  so.  It  was  proved 
that  the  bankrupt  had  said  more  than  once  that  the  hops   were  to 

E-emain  in  the  defendants'  hands  till  paid  for  and  that  he  said  so 
vhen  he  was  about  buying  one  of  the  parcels  of  hops  for  which  the 
iction  was  brought.  The  bankrupt  did  not  pay  for  the  hops,  and 
on  the  6th  of  September,  1823,  the  defendants  wrote  to  the  bank- 
rupt, and  desired  him  to  "take  notice,  that  unless  he  paid  for  the 
hops  they  had  sold  him,  on  or  before  Tuesday  then  next,  the  de- 
fendants would  proceed  to  resell  them,  holding  him  accountable  for 
any  loss  which  might  arise  in  consequence  thereof." 


Sec.  1)  LIEN  447 

Before  the  bankruptcy  the  defendants  did  not  sell  any  parcel  of 
hops  without  the  bankrupt's  express  assent.  After  the  notice  already 
stated  the  defendants  sold  some  parcels  of  the  hops,  but  in  one  in- 
stance the  bankrupt  refused  to  allow  the  defendants  to  sell  a  parcel 
of  hops  to  a  person  named  by  them  at  the  price  offered,  and  that 
parcel  was  accordingly  sold  by  the  defendants,  before  Saxby's  bank- 
ruptcy, to  another  person  by  Saxby's  authority.  On  another  oc- 
casion in  the  month  of  September  the  bankrupt  had  employed  a  bro- 
ker to  sell  another  parcel  of  the  hops,  but  the  defendants  refused 
to  deliver  them  without  being  paid  for  them.  After  the  act  of  bank- 
ruptcy the  defendants  sold  hops  of  the  bankrupts  to  the  amount  of 
f380.  19s.  5d.  The  defendants  delivered  account  sales  of  the  hops 
so  sold  by  them  after  the  bankruptcy.  The  hops  were  stated  to  be 
sold  for  Saxby,  and  he  was  charged  warehouse  rent  from  the  30th 
of  August,  and  also  commission  on  the  sales. 

Besides  the  hops  purchased  from  the  defendants,  the  bankrupt 
placed  in  their  warehouse  nineteen  pockets  of  hops  for  sale  by  them 
(as  factors,)  of  which  fifteen  pockets  were  sold  on  and  after  the 
13th  of  January,  1824,  of  the  value  of  i.77 .  19s.  5d.,  and  of  which 
four  remained  in  their  warehouse  at  the  time  of  the  trial,  which 
four  were  of  the  value  of  il4.,  and  there  were  also  unsold  of  the 
hops  purchased  from  defendants  seven  bags,  fifty-six  pockets,  of 
the  value  of  £251.  13s.  6d.  There  was  a  demand  by  plaintiffs  of  these 
hops,  and  a  tender  of  warehouse  rent  and  charges,  and  a  refusal  on 
the  part  of  the  defendants  to  deliver  them,  before  action  brought. 
The  jury  found  that  the  defendants  did  not  rescind  the  sales  made 
by  them  to  the  bankrupt. 

BayIvEY,  J.,  now  delivered  the  judgment  of  the  court.    This  was  an 
action  of  trover  for  certain  quantities  of  hops  sold  by  the   defend- 
ants to   Saxby,   before   his  bankruptcy,   and   for  certain   other    hopsi 
which  Saxby,  had  placed  in  defendants'  warehouses,  that  defendants! 
in  their  character  of   factors  might  sell  them    for  his  use,  and  the\ 
question  as  to  this  latter  parcel  stands  upon  perfectly  distinct  grounds 
from  the  question  as  to  the  others.    This  parcel  consisted  of  nineteen 
pockets ;    defendants   sold   none   of   them   until   after   Saxby's   bank- 
ruptcy, and  then  they  sold  fifteen  pockets,  not  for  the  use  of  the  as- 
signees, but  to  apply  the  proceeds,  not  for  any  debt  due  to  them  in 
their  character  of  factors,  but  to  discharge  a  claim  they  considered 
themselves  as  having  upon  Saxby,  in  regard  to  the  other  hops ;    and 
the  other  four  pockets  they  refused  to  deliver  to  the  assignees.     It 
was  candidly  admitted  upon  the  argument,  and  was  clear  beyond  all 
doubt,  that  the  defendants  were  not  warranted  in  applying  the  pro- 
ceeds of  the  fifteen  pockets,  to  the  purpose  to  which  they  attempted  i 
to  apply  them,  and  that  they  had  no  legal  ground   for  withholding  \ 
the   four  pockets ;    and   therefore,    to   the    extent    of   these   nineteen   1 
pockets,  the  value  of  which  is  £91.  19s.  5d.,  we  think  it  clear,  that  the    \ 
plaintiffs  are  entitled  to  recover. 


448  BIGHTS   OF   UNPAID   SELLER    AGAINST   THE    GOODS  (Ch.  5 

The  other  quantities  were  hops  Saxby  had  bargained  to  buy  of 
the  defendants  on  different  days  in  August,  1823,  and  for  which 
defendants  had  deHvered,  bought  notes  to  Saxby.  The  bought  notes 
were  in  this  form :  "Mr.  J.  R.  Saxby,  of  Sanders,  Parkes  &  Co., 
T.  M.  Simmons,  eight  pockets  at  155s.,  8th  of  August,  1823." 
Part  of  the  hops  were  weighed,  and  an  account  delivered  to  Saxby, 
of  the  weights,  and  samples  were  given  to  Saxby,  and  invoices  de- 
livered. The  bought  notes  were  silent  as  to  the  time  for  delivering 
the  hops,  and  also  as  to  the  time  for  paying  for  them,  but  the  usual 
time  for  paying  for  hops,  was  proved  to  be  the  second  Saturday, 
after  the  purchase.  It  was  also  proved  that  Saxby,  had  said  that 
the  hops  were  to  remain  with  the  defendants,  till  they  were  paid 
for ;  but  as  the  admissibility  of  such  evidence  was  questioned,  and 
in  our  view  of  the  case  it  is  unnecessary  to  decide  that  point.  I  only 
mention  it  to  dismiss  it.  (The  learned  Judge  then  stated  the  other 
facts  set  out  in  the  special  case,  and  then  proceeded  as  follows :) 

Under  these  circumstances  the  question  is,  whether  in  respect  of 
these  hops,  the  plaintiffs  are  entitled  to  recover.  It  was  urged,  on 
the  part  of  the  plaintiffs,  that  the  sale  of  these  hops,  vested  the  prop- 
erty in  them  in  Saxby ;  that  the  hops  were  to  be  considered  as  sold 
upon  credit,  and  that  defendants  had  no  lien,  therefore,  upon  any 
of  them  for  the  price ;  that  if  they  ever  had  any  lien,  it  was  de- 
stroyed as  to  those  they  sold  by  the  act  of  sale,  and  that  the  plaintiffs 
'were  entitled  to  recover  the  full  value  of  what  were  sold,  without 
making  any  deduction  for  the  price  which  was  unpaid.  It  is.  there- 
fore, material  to  consider  whether  the  property  vested  in  Saxby,  to 
any  and  to  what  extent;  and  what  were  the  respective  rights  of 
Saxby,  and  of  the  defendants.  Where  goods  are  sold,  and  nothing 
is  said  as  to  the  time  of  the  delivery,  or  the  time  of  payment,  and 
every  thing  the  seller  has  to  do  with  them  is  complete,  the  property 
vests  in  the  buyer,  so  as  to  subject  him  to  the  risk  of  any  accident 
which  may  happen  to  the  goods,  and  the  seller  is  liable  to  deliver 
them  whenever  they  are  demanded  upon  payment  of  the  price ;  but 
the  buyer  has  no  right  to  have  possession  of  the  goods  till  he  pays 
the  price.  The  buyer's  right  in  respect  of  the  price  is  not  a  mere 
lien  which  he  will  forfeit  if  he  parts  with  the  possession,  but  grows 
out  of  his  original  ownership  and  dominion,  and  payment  or  a  ten- 
der of  the  price  is  a  condition  precedent  on  the  buyer's  part,  and 
until  he  makes  such  payment  or  tender  he  has  no  right  to  the  posses- 
sion. If  goods  are  sold  upon  credit,  and  nothing  is  agreed  upon  as 
to  the  time  of  delivering  the  goods,  the  vendee  is  immediately  enti- 
tled to  the  possession,  and  the  right  of  possession  and  the  right  of 
property  vest  at  once  in  him ;  but  his  right  of  possession  is  not  ab- 
solute, it  is  liable  to  be  defeated  if  he  becomes  insolvent  before  he 
obtains  possession,  Tooke  v.  Hollingsworth,  5  T.  R.  215. 

Whether  default  in  payment  when  the  credit  expires,  will  destroy 
his  right  of  possession,  if  he  has  not  before  that  time  obtained  actual 


Sec.  1)  LIEN  449 

possession  and  put  him  in  the  same  situation  as  if  there  had  been  no 
bargain  for  credit,  it  is  not  now  necessary  to  enquire,  because  this  is 
a  case  of  insolvency,  and  in  case  of  insolvency  the  point  seems  to  be 
perfectly  clear,  Hanson  v.  Meyer,  6  East,  614.  If  the  seller  has  dis- 
patched the  goods  to  the  buyer,  and  insolvency  occurs,  he  has  a  right 
in  virtue  of  his  original  ownership  to  stop  them  in  transitu,  Mason  v. 
Lickbarrow,  1  H.  Bl.  357,  Ellis  v.  Hunt,  3  T.  R.  464,  Hodgson  v.  Loy, 
7  T.  R.  440,  Inglis  and  Others  v.  Usherwood,  1  East,  515,  Bothlingk 
V.  Inglis,  3  East,  381.  Why?  Because  the  property  is  vested  in 
the  buyer,  so  as  to  subject  him  to  the  risk  of  any  accident;  but  he 
has  not  an  indefeasible  right  to  the  possession,  and  his  insolvency, 
without  payment  of  the  price,  defeats  that  right.  And  if  this  be 
the  case  after  he  has  dispatched  the  goods,  and  whilst  they  are  in 
transitu  a  fortiori,  is  it  when  he  has  never  parted  with  the  goodsl 
and  when  no  transitus  has  begun.  The  buyer,  or  those  who  stand  irJ 
his  place,  may  still  obtain  the  right  of  possession  if  they  will  pay 
or  tender  the  price,  or  they  may  still  act  upon  their  right  of  property 
if  any  thing  unwarrantable  is  done  to  that  right.  If,  for  instance, 
the  original  vendor  sell  when  he  ought  not,  they  may  bring  a  special 
action  against  him  for  the  injury  they  sustain  by  such  wrongful  sale, 
and  recover  damages  to  the  extent  of  that  injury ;  but  they  can 
maintain  no  action  in  which  right  of  property  and  right  of  posses- 
sion, are  both  requisite,  unless  they  have  both  those  rights,  Gordon 
V.  Harper,  7  T.  R.  9. 

Trover  is  an  action  of  that  description,  it  requires  right  of  prop- 
erty and  right  of  possession  to  support  it.  And  this  is  an  answer 
to  the  argument  upon  the  charge  of  warehouse  rent,  and  the  non- 
rescinding  of  the  sale.  If  the  defendants  were  forced  to  keep  the 
hops  in  their  warehouse  longer  than  Saxby  had  a  right  to  require 
them,  they  were  entitled  to  charge  him  with  that  expense,  but  that 
charge  gave  him  no  better  right  of  possession  than  he  would  have 
had  if  that  charge  had  not  been  made.  Indeed  that  charge  was  not 
made  until  after  the  bankruptcy,  and  until  the  defendants  insisted 
that  the  right  of  possession  was  transferred  to  their  second  vendee. 
Then  as  to  the  non-rescinding  of  the  sale,  what  can  be  its  effect? 
It  is  nothing  more  than  insisting  that  the  defendants  will  not  release 
Saxby,  from  the  obligation  of  his  purchase,  but  it  will  give  him  no 
right  beyond  the  right  his  purchase  gave,  and  that  is  a  right  to  have 
the  possession  on  payment  of  the  price.  As  that  price  has  not  been 
paid  or  tendered,  we  are  of  opinion  that  this  action,  which  is  not  an 
action  for  special  damage  by  a  wrongful  sale,  but  an  action  of  trover 
cannot,  as  to  those  hops,  be  maintained.  The  verdict  must,  there- 
fore, be  for  the  plaintiffs  for  the  sum  of  £91.  19s.  5d.  only. 

Judgment  for  the  plaintiff. 
WooDW.  Sales — 29 


450  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

McELWEE  et  al.  v.  METROPOLITAN  LUMBER  CO. 
(Circuit  Court  of  Appeals,  Sixth  Circuit,  1895.     69  Fed.  302,  16  C.  C.  A.  232.) 

iispkvin  by  McElwee  &  Carney  to  recover  a  quantity  of  lumber 
alleged  to  have  been  sold  by  the  defendant  to  S.  B.  Barker  &  Co. 
and  by  S.  B.  Barker  &  Co.  to  the  plaintiffs.  Judgment  below  was 
for  the  defendant,  and  the  plaintiffs  sued  out  a  writ  of  error.^ 

The  facts,  so  far  as  it  is  necessary  to  state  them  here,  were  as 
follows : 

In  May,  1892,  the  Metropolitan  Lumber  Company  made  a  con- 
tract with  S.  B.  Barker  &  Co.  for  the  sale  to  them  of  all  the  product 
of  its  mill  during  the  season  of  1892.  By  the  terms  of  this  contract 
the  amount  of  lumber  manufactured  each  month  was  to  be  deter- 
mined by  inspectors  on  the  first  of  the  succeeding  month,  and  Barker 
&  Co.  were  to  give  their  notes  due  in  90  days  for  the  price,  less  the 
freight  from  the  lumber  company's  mill  to  Chicago.  It  was  further 
provided  that,  if  Barker  &  Co.  did  not  desire  the  lumber  shipped 
as  fast  as  made,  the  lumber  company  would  renew  their  notes  for 
the  price  so  long  as  the  lumber  remained  in  its  possession,  not  ex- 
ceeding 90  days.  At  the  close  of  the  season,  on  November  12,  1892, 
a  considerable  quantity  of  lumber  remained  in  possession  of  the  lum- 
ber company,  for  which  notes  were  outstanding,  having  been  dis- 
counted by  the  lumber  company.  In  January,  1893,  Barker  &  Co. 
requested  renewals  of  such  notes,  under  the  clause  in  the  contract 
providing  therefor,  and  new  notes  were  given,  maturing  in  May, 
June,  and  July.  On  May  30th,  Barker  &  Co.  failed,  and  the  lumber 
company  at  once  asserted  a  right  to  retain  the  lumber  remaining  in 
its  possession.  It  was  claimed  by  the  plaintiffs  that  on  November 
14,  1892,  which  was  shortly  after  the  close  of  the  season,  in  con- 
sideration of  Barker  &  Co.'s  executing  a  note  for  the  lumber  manu- 
factured in  November  at  once,  instead  of  waiting  until  the  1st  of  the 
succeeding  month,  the  lumber  company  had  agreed  to  turn  over  to 
Barker  &  Co.  all  its  right  and  title  to  the  lumber  on  hand,  and  had 
thereafter  held  such  lumber  as  bailee  of  Barker  &  Co. 

LuRTON,  Circuit  Judge,  after  stating  the  facts  as  above,  delivered 
the  opinion  of  the  court. 

Though  the  agreement  was  originally  executory,  being  for  the  sale 
of  lumber  to  be  manufactured,  yet,  when  the  product  of  a  particular 
month  was  completed,  and  it  had  been  inspected  and  measured,  there 
was  a  complete  bargain  and  sale  of  the  lumber  thus  designated.  That 
particular  lumber  became  appropriated  to  the  contract,  and  the  vendee 
tuider  the  agreement  was  obliged  to  make  his  promissory  note  to  the 
vendor  for  the  price,  payable  90  days  after  date.  The  element  neces- 
sary to  a  perfect  and  complete  sale  was  supplied  by  the  appropriation 
of  a  particular  lot  of  lumber  to  the  contract.    In  the  absence  of  a  con- 

1  The  .statement  of  facts  is  abridged,  aud  part  of  the  opiuion  is  omitted. 


Sec.  1)  LIEN  451 

trary  intention,  clearly  expressed  by  other  parts  of  the  contract,  the! 
right  of  property  and  of  possession  would  vest  in  the  buyer  upon  the! 
execution  of  his  promissory  note  payable  to  the  seller.  The  provision' 
for  a  final  inspection  at  Escanaba  after  the  delivery  had  begun  was 
merely  for  the  correction  of  errors  before  final  settlement,  and  does 
not  operate  to  defeat  the  presumption  that  title  passed  when  the  lum- 
ber was  first  inspected  and  accepted  and  conditional  payment  made. 
Macomber  v.  Parker,  13  Pick.  (Mass.)  183 ;  Cotton  Press  Co.  v.  Stan- 
ard,  44  Mo.  71,  100  Am.  Dec.  255. 

To  say  that  title  remained  with  the  vendor  after  the  lumber  had 
been  appropriated  to  the  contract  and  accepted  by  the  buyer,  and  after 
the  negotiable  notes  of  the  vendee  had  been  delivered  in  settlement, 
would  leave  the  vendor  liable  for  loss  by  fire  or  other  casualty,  and  the 
vendee  without  security  for  the  payment  he  had  made.  The  clause 
concerning  the  risk,  from  fire,  of  lumber  carried  over  from  the  season 
of  1892,  was  not  interpreted  by  the  defendant  in  error  as  leaving  the 
risk  with  the  defendant  during  the  season;  for  the  insurance  carried 
in  its  own  name  was,  by  its  own  procurement,  made  payable  to  Bar- 
ker &  Co.,  to  the  extent  of  their  interest.  It  may  be  added  that,  at  the 
date  when  the  right  of  plaintiffs  in  error  accrued,  this  insurance  had 
been  transferred  to  Barker  &  Co.  as  owners,  and  was  being  carried  by 
them.  Neither  did  the  provision  that  the  vendor  should  deliver  at 
Chicago  prevent  the  title  from  passing  before  such  delivery.  Un- 
doubtedly, the  general  rule  is  that  if  the  seller  obligates  himself  as  a 
part  of  his  contract  to  deliver  the  property  to  the  buyer  at  some  speci 
fied  place,  title  will  not  pass  until  such  delivery.  The  Venus,  S\ 
Cranch,  275,  3  L.  Ed.  553;  Sneathen  v.  Grubbs,  88  Pa.  147;  Benj. 
Sales,  §§  325,  377;   Com.  v.  Greenfield,  121  Mass.  40. 

"Slight  evidence,"   says  Mr.   Benjamin,   "is,  however,  accepted  a 
sufficient  to  show  that  title  passes  immediately  on  the  sale,  though  th 
seller  is  to  make  a  delivery.    The  question,  at  last,  is  one  of  intent,  to| 
be  ascertained  by  a  consideration   of  all  the  circumstances."     Benj 
Sales,  §  329.    Here  the  lumber  cut,  inspected,  and  measured  was  com- 
pletely identified.     Nothing  more  remained  to  be  done  to  put  it  in  a 
deliverable  condition.     It  was  then  paid  for.     The  delivery  might  be 
delayed  by  the  neglect  of  the  seller,  or  for  the  convenience  of  the  buy- 
er.    In  paying  for  the  lumber,  the  price  of  the  freight  was  deducted. 
Under  such  circumstances,  it  would  be  difficult  to  say  that,  if  the  lum- 
ber should  be  destroyed  without  fault  of  the  seller,  the  loss  would  not 
fall  on  the  buyer. 

Terry  v.  Wheeler,  25  N.  Y.  520,  is  much  in  point.  That  was  a  case 
of  the  sale  of  lumber  which  was  selected  by  the  buyer,  and  measured 
and  piled  in  the  yard  of  the  seller,  and  the  price  was  paid.  The  seller, 
however,  agreed,  as  part  of  the  contract,  to  deliver  the  lumber  free  of 
charge  on  board  of  the  cars,  no  time  being  specified.  The  lumber  was 
destroyed  by  fire  on  the  day  of  sale,  and  the  buyer  sued  to  recover  his 


452  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Cll.  5 

purchase  money.  Selden,  J.,  said:  "No  case  has  been  referred  to  by 
counsel,  nor  have  I  discovered  any,  in  which,  where  the  article  sold 

iwas  perfectly  identified  and  pai3  for,  it  was  held  that  a  stipulation  of 
the  seller  to  deliver  at  a  particular  place  prevented  the  title  from  pass- 
ing. If  the  payment  was  to  be  made  on  or  after  the  delivery,  at  a  par- 
ticular place,  it  might  fairly  be  inferred  that  the  contract  was  execu- 
tory, until  such  delivery;  but  where  the  sale  appears  to  be  absolute, 
the  identity  of  the  thing  fixed,  and  the  price  for  it  paid,  I  see  no  room 
for  an  inference  that  the  property  remains  the  seller's  merely  because 
he  has  engaged  to  transport  it  to  a  given  point,  I  think  in  such  case 
the  property  passes  at  the  time  of  the  contract,  and  that  in  carr^'ing  it 
the  seller  acts  as  bailee  and  not  as  owner."  Hobbs  v.  Carr,  127  ]\lass. 
532;  Weld  v.  Came,  98  Mass.  152;  Lingham  v.  Eggleston,  27  Mich. 
324;  Underbill  v.  Booming  Co.,  40  Mich.  660;  Booming  Co.  v.  Un- 
derbill, 43  Mich.  629,  5  N.  W.  1073;  Steam  Mill  Co.  v.  Brown,  57 
.Me.  9  [99  Am.  Dec.  752]  ;  Hatch  v.  Oil  Co.,  100  U.  S.  135  [25  L.  Ed. 
554]  ;   Dyer  v.  Libby,  61  Me.  45. 

The  passage  of  title  does  not  militate  against  the  existence  of  a  ven- 
dor's lien.  Such  a  lien  arises  upon  the  vesting  of  the  title  in  the  ven- 
dee, and  is  a  mere  right  of  the  vendor  to  retain  possession  until  the 
price  is  paid.  If  the  title  remains  with  the  vendor,  there  is  no  lien; 
and  this  was  explicitly  stated  to  the  jury,  who  distinctly  found  in  their 
general  verdict  that  the  appellee  had  a  vendor's  lien.  If  such  a  lien 
existed  when  appellants  replevied  the  lumber  involved,  it  arose  in  con- 
sequence of  facts  occurring  after  the  vendee  gave  his  original  notes. 
The  agreement  to  give  credit '  for  90  days  after  each  installment  of 
lumber  was  placed  in  a  deliverable  condition,  and  had  been  inspected 
and  estimated,  was  wholly  inconsistent  with  any  right  of  the  vendor 
to  retain  possession  until  the  price  was  paid.  The  duty  of  immediate 
delivery,  credit  having  been  given,  was  wholly  inconsistent  with  a  right 
to  hold  as  security  for  the  purchase  price.  "Selling  goods  on  a  credit 
;y means  ex  vi  terminorum  that  the  buyer  is  to  take  them  in  his  posses- 
sion, and  the  vendor  is  to  trust  to  the  buyer's  promise  for  the  payment 
of  the  price  at  a  future' time."    Benj.  Sales  (Corb.  Ed.)  §  1182. 

The  doctrine  is  well  stated  in  the  leading  English  cases  of  Bloxam 
V.  Sanders,  4  Barn.  &  C.  941,  and  Bloxam  v.  Morley,  4  Barn.  &  C. 
951,  by  Bayley,  J.,  who  thus  stated  the  general  principles  concerning 
the  lien  of  a  vendor  of  goods :  "The  vendor's  right  in  respect  of  his 
price  is  not  a  mere  lien  which  he  will  forfeit  if  he  parts  with  the  pos- 
session, but  grows  out  of  his  original  ownership  and  dominion.  If 
goods  are  sold  on  credit,  and  nothing  is  agreed  on  as  to  the  time  of 
delivering  the  goods,  the  vendee  is  immediately  entitled  to  the  posses- 
sion, and  the  right  of  possession  and  the  right  of  property  vest  at  once 
in  him :  but  his  right  of  possession  is  not  absolute ;  it  is  liable  to  be 
defeated  if  he  becomes  insolvent  before  he  obtains  possession.  Tooke 
V.  Hollingworth,  5  Term  R.  215.    If  the  seller  has  dispatched  the  goods 


Sec.  1)  LIEN  453 

to  the  buyer,  and  insolvency  occur,  he  has  a  right,  in  virtue  of  his 
original  ownership,  to  stop  them  in  transitu.  Why?  Because  the 
property  is  vested  in  the  buyer  so  as  to  subject  him  to  the  risk  of  any 
accident.  But  he  has  not  an  indefeasible  right  to  the  possession,  and 
his  insolvency,  without  payment  of  the  price,  defeats  the  right.  Th^ 
buyer,  or  those  who  stand  in  his  place,  may  still  obtain  the  right  of 
possession  if  they  will  pay  or  tender  the  price ;  or  they  may  still  act 
on  their  right  of  property,  if  anything  unwarrantable  is  done  to  that 
right.  If,  for  instance,  the  original  vendor  sell  when  he  ought  not, 
they  may  bring  a  special  action  against  him  for  the  damage  they  sus- 
tain by  such  wrongful  sale,  and  recover  damages  to  the  extent  of  that 
injury;  but  they  can  maintain  no  action  in  which  the  right  of  property 
and  the  right  of  possession  are  both  requisite,  unless  they  have  both 
those  rights." 

Thus,  after  the  execution  to  the  vendor  of  the  promissory  notes  of 
the  vendee,  the  title  or  right  of  property  and  the  right  of  possession 
to  the  lumber  embraced  within  each  monthly  settlement  were  vested 
in  Barker  &  Co.  The  actual,  manual  possession  was  with  the  Metro- 
politan Lumber  Company,  which  was  under  obligation  to  deliver  tO' 
the  buyer  as  delivery  should  be  required.  Delivery  could  not  be  re- 
fused unless  one  of  two  things  should  occur  before  the  actual  posses- 
sion was  surrendered,  namely,  insolvency  of  the  buyer  or  nonpayment 
of  the  price  when  the  credit  expired.  In  case  of  the  happening  of  ei- 
ther of  these  contingencies  before  the  actual  possession  of  the  lumber 
passed  from  the  seller  to  the  buyer,  the  vendor's  lien,  which  had  been 
waived  by  a  sale  on  a  credit,  would  revive,  and  the  vendor  might  law- 
fully retain  his  possession  until  the  price  was  paid.  Even  if  goods 
have  been  delivered  to  a  carrier  consigned  to  the  vendee,  and  insol- 
vency occurs  before  they  reach  the  actual  possession  of  the  buyer,  the 
vendor  may  exercise  the  right  of  stoppage  in  transitu  to  recover  his 
possession,  and  thereby  revive  his  lien.     *     *     * 

Unless,  therefore,  the  actual  possession  had  been  surrendered  be- 
fore the  alleged  change  in  the  contract,  to  be  hereafter  considered,  the 
vendor's  lien  would  revive,  in  case  insolvency  occurred  before  deliv- 
ery or  the  period  of  credit  expired  and  the  price  was  unpaid.  The  ef- 
fect upon  the  vendor's  right  of  the  expiration  of  the  period  of  credit 
while  the  actual  possession  is  with  the  vendor  is  thus  stated :  "When 
goods  have  been  sold  on  credit,  and  the  purchaser  permits  them  to  re- 
main in  the  vendor's  possession  till  the  credit  has  expired,  the  ven- 
dor's lien,  which  was  waived  by  the  grant  of  credit,  revives  upon  the 
expiration  of  the  term,  even  though  the  buyer  may  not  be  insolvent." 
Benj.  Sales  (Corb.  Ed.)  §  1227. 

This  revesting  of  the  lien  is  not  affected  by  the  fact  that  the  seller 
had  received  conditional  payment  by  promissory  notes  or  bills  of  ex- 
change, nor  by  the  fact  that  such  notes  or  bills  had  been  negotiated  sa 
that  they  were  outstanding  when  they  matured,  or  unmatured  and  out- 


454  UIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Cll.  5 

Standing  when  the  insolvency  occurred.  Benj.  Sales  (Corb,  Ed.)  §§ 
1130-1185.  and  note  4;  Valpy  v.  Oakeley,  16  Q.  B.  941;  Griffiths  v. 
Perry,  1  El.  &  El.  680;  Grice  v.  Richardson,  L.  R.  3  App.  Cas.  319; 
White  V.  Welsh,  38  Pa.  420;  Wanamaker  v.  Yerkes,  70  Pa.  443;  x\r- 
nold  V.  Delano,  4  Cush.  (Mass.)  33,  50  Am.  Dec.  754;  Townley  v. 
Crump,  4  Adol.  &  E.  58.  The  liability  of  defendant  in  error  as  in- 
dorser  on  such  notes  as  had  been  negotiated  operated  to  continue  the 
relation  of  an  unpaid  vendor.  The  right  of  retention  is  not  a  right  of 
rescission,  and  it  is  not  essential  to  the  revival  of  the  lien  that  the 
notes  of  the  purchaser  shall  be  delivered  up  or  ready  for  delivery, 
though  in  Arnold  v.  Delano,  cited  above,  it  seems  to  have  been  so  re- 
garded. If,  after  the  revival  of  the  vendor's  lien  by  expiration  of  the 
credit,  the  seller  extended  further  credit  by  taking  renewal  notes,  pay- 
able at  a  future  date,  the  revived  lien  would  be  waived,  unless  there 
was  some  agreement  that  this  further  credit  should  not  have  that  ef- 
fect, and  that  the  seller  should  hold  the  property  as  security  for  the 
renewal  notes. 

This  state  of  things  seems  to  have  been  contemplated  by  the  par- 
ties; for,  by  one  of  the  clauses  of  the  original  contract,  a  provision 
was  made  for  renewals  or  extensions  for  such  time  as  the  lumber  in 
the  actual  possession  of  the  vendor  when  an  extension  was  granted 
should  "remain  in  the  possession"  of  the  lumber  company,  "not  ex- 
ceeding ninety  days."  The  reasonable  construction  to  be  placed  upon 
this  provision  is  that  the  revived  lien,  resulting  from  the  expiration  of 
the  original  credit,  should  not  be  waived  by  renewal  of  purchase  notes 
and  an  extension  of  credit.  Before  such  extension,  the  buyer  un- 
doubtedly had  the  right  of  property  and  right  of  possession.  After 
such  renewals,  all  rirrht  of  possession  till  the  renewal  notes  were  paid 
was  lost.  Independently  of  the  agreement  that  extended  credit  should 
not  waive  the  lien  which  had  been  revi^^ed  by  expiration  of  original 
credit,  the  insolvency  which  occurred  during  the  running  of  the  renew- 
al notes  would  operate  to  revive  the  suspended  lien,  and,  between  ven- 
dor and  vendee,  or  a  subvendee  standing  on  no  higher  ground  than  the 
vendee,  the  defendant  in  error  had  a  right  to  hold  the  possession  till 
the  renewal  notes  were  paid.  The  authorities  already  cited  fully  sus- 
tain this  position. 

Aside  from  all  questions  arising  on  the  alleged  modification  of  No- 
vember 14,  1892,  and  all  questions  of  estoppel,  the  rights  of  the  de- 
fendant in  error,  in  the  actual  possession  of  lumber  which  had  not 
been  paid  for,  w-ould  not  be  affected  by  a  sale  to  a  third  person.  Such 
a  subvendee  would  buy  subject  to  the  right  of  the  vendor  to  hold  pos- 
session as  security  for  renewal  notes ;  and,  without  regard  to  this  spe- 
cial agreement,  a  subvendee  would  take  subject  to  the  possibility  that 
before  possession  was  obtained  the  lien  might  be  revived  by  insolvency 
of  the  vendee  or  expiration  of  the  stipulated  credit.    These  considera- 


Sec.  1)  LIEN  455 

tions  lead  us  to  the  conclusion  that  the  rights  of  the  plaintiffs  in  error, 
as  subvendees,  must,  as  the  learned  judge  who  presided  at  nisi  prius 
instructed  the  jury,  depend  either  upon  questions  of  estoppel  or  upon 
the  legal  effect  of  the  modification  in  the  contract  as  defeating  any- 
right  of  lien  in  the  vendor.  The  construction  given  the  original  con-  . 
tract  that  the  title  did  not  vest  in  the  purchaser  till  delivery  at  Chi- 
cago, though  erroneous,  was  harmless.  It  is  a  matter  of  no  moment  to 
plaintiffs  in  error  whether  the  defendant  in  error  had  a  right  of  re- 
tention by  reason  of  the  fact  that  it  had  not  parted  with  the  title  or 
because  it  had  a  vendor's  lien.  In  either  case,  plaintiffs  in  error  must 
fail  in  this  action,     *     *     * 

This  brings  us  to  the  legal  effect  of  the  alleged  modifications  of 
November  14,  1892,  upon  the  rights  of  the  parties.  *  =f^  *  There 
is  no  evidence  in  this  record  which  would  justify  a  finding  that  there 
was  an  agreement  that,  after  the  modifications  of  November  14th,  the 
vendors  should  no  longer  remain  in  possession  as  vendors,  but  should 
thereafter  hold  as  agent  or  bailee  for  Barker  &  Co.  Upon  the  con- 
trary, the  construction  placed  upon  the  agreement,  after  the  alleged 
modifications,  by  both  parties,  was  wholly  inconsistent  with  any  change 
in  the  character  in  which  the  vendor  remained  in  the  actual  possession. 
The  claim  of  Barker  &  Co.  for  an  extension  of  credit  was  made  upon 
the  clause  providing  for  renewals  while  the  vendors  remained  in  pos^ 
session,  and  the  whole  correspondence  was  based  upon  the  theory  that' 
the  lumber  would  stand  as  a  security  for  the  renewal  notes. 

On  the  evidence  before  the  jury,  it  was  not  error  to  assume,  as  the 
trial  judge  did,  that  at  the  occurrence  of  the  vendee's  insolvency,  there 
had  been  no  delivery  to  the  vendee,  either  actual  or  constructive.  Nei- 
ther do  we  think  that  it  would  follow,  if  there  was  such  evidence,  that 
a  mere  agreement,  express  or  implied,  by  an  unpaid  vendor,  to  hold 
possession  as  bailee  or  agent  for  the  vendee,  would  operate  as  such  a 
delivery  to  the  vendee  as  to  prevent  the  revivor  of  the  vendor's  lien  if 
the  vendee  should  fail  before  the  actual  possession  was  lost.  It  is  to 
be  borne  in  mind  that  this  right  of  the  vendor  springs  out  of  the  re- 
lation of  the  parties  and  the  natural  equity  that  the  vendor  shall  not 
be  compelled  to  complete  a  contract  by  delivery  when  the  vendee  has 
not  paid  the  price,  or  by  insolvency  becomes  unable  to  carry  out  his 
side  of  the  agreement.  As  put  by  Bayley,  B.,  in  Miles  v.  Gorton,  2 
Cromp.  &  M.  511 :  "Although  everything  may  have  been  done  so  as  to 
divest  the  property  out  of  the  vendor,  and  so  as  to  throw  upon  the 
vendee  all  risk  attendant  upon  the  goods,  still  there  results  to  the  ven- 
dor out  of  the  original  contract  a  right  to  retain  the  goods  until  the 
payment  of  the  price." 

The  case  of  Barrett  v.  Goddard,  where  the  opinion  was  by  Justice 
Story  on  circuit,  and  reported  as  No.  1,046,  Fed.  Cas.,  is  much  relied 
upon  by  plaintiffs  in  error.     That  case  is,  however,  exceptional,  and 


456  EIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

is  founded  for  the  most  part  on  Hurry  v.  Mangles,  1  Camp.  452,  where 
the  rights  of  a  subvendee  had  intervened,  who  had  bought  and  paid 
for  the  goods,  and  then  paid  rent  to  the  vendor  as  warehouseman.  In 
Miles  V.  Gorton,  2  Cromp.  &  J\I.  506,  Hurry  v.  Mangles  was  distin- 
guished, upon  the  ground  that  the  vendor,  by  receiving  rent  from  a 
subvendee,  had  delivered  the  goods  to  the  subvendee,  and  thereafter 
held  as  agent  for  the  subvendee  and  not  as  agent  for  the  vendee.  The 
other  cases  cited  by  Justice  Story  are  cases  where  the  question  was 
one  of  delivery  to  the  vendee  under  the  statute  of  frauds,  and  are  ap- 
plicable only  in  respect  of  questions  upon  the  formation  of  the  con- 
tract. There  is  a  clear  distinction  between  a  delivery  which  will  suf- 
fice to  take  a  case  without  the  statute  of  frauds,  and  an  agreement  of 
a  vendor  to  hold  in  the  character  of  bailee  for  the  vendee,  as  a  delivery 
sufficient  to  divest  the  vendor's  lien  or  prevent  its  revival  on  insol- 
vency or  expiration  of  period  of  credit.  Benj.  Sales  (Corb.  Ed.)  §§ 
1131-1134.  1187;  Miles  v.  Gorton,  2  Cromp.  &  M.  504;  Hurry  v. 
Alangles,  1  Camp.  452;  Tanner  v.  Scovell,  14  Mees.  &  W.  28-37; 
Townley  v.  Crump,  4  Adol.  &  E.  58;  Grice  v.  Richardson,  L.  R.  3 
App.  Cas.  319. 

The  case  last  cited  is  an  opinion  of  the  house  of  lords,  and  was  de- 
cided as  late  as  1877.  The  doctrine  of  ^liles  v.  Gorton,  heretofore 
cited,  was  distinctly  affirmed.  In  that  case  it  appeared  that  the  ven- 
dors were  warehousemen,  and  made  an  arrangement  with  the  pur- 
chasers that  they  should  pay  warehouse  rent,  and  the  sale  was  on  a 
credit.  It  was  held — First,  that  unless  actual  possession  of  goods  sold 
has  been  delivered  to  the  purchaser,  the  vendor  is  not  deprived  of  his 
right  of  lien  as  against  the  assignee  of  the  purchaser  in  the  event  of 
insolvency ;  second,  that,  as  the  goods  remained  in  the  possession  of 
the  vendors,  and  no  actual  delivery  had  been  made  to  the  purchaser, 
the  vendors'  lien  revived  upon  the  insolvency  of  the  vendee,  notwith- 
standing the  vendors  had  become  bailees  for  the  vendee.  The  case  was 
argued  by  Mr.  Benjamin,  the  learned  author  of  the  work  on  Sales  of 
Personal  Property,  in  favor  of  the  view  announced  by  the  house  of 
lords.  Other  English-  cases  bearing  upon  the  question  are :  Dodslev  v. 
Varley,  12  Adol.  &  E.  632 ;  Valpy  v.  Oakeley,  16  Q.  B.  941 ;  Mc- 
Ewan  V.  Smith,  2  H.  L.  Cas.  309.     *     *     * 

Entertaining  these  views,  it  is  clear  that,  if  the  defendant  in  error 
is  debarred  from  asserting  a  vendor's  lien  upon  the  insolvency  of  the 
vendee,  it  must  be  because  the  plaintiffs  in  error  have  acquired  rights 
as  subpurchasers  which  the  vendor  is  estopped  to  deny  or  contravene 
by  the  assertion  of  a  lien.  What  are  these  rights,  and  what  is  their 
origin?  As  mere  subpurchasers  of  lumber  in  the  actual  possession 
of  the  vendor,  they  only  acquire  the  right  and  interest  of  the  vendee. 
If,  at  the  time  they  bought,  the  vendor  had  no  lien,  no  right  of  re- 
tention, then  they  would  acquire  the  right  to  demand  delivery.  But 
the  right  of  a  vendee  who  has  bought  on  a  credit  is  not  an  abso- 


Seel)  LIEN  45T 

lute  right  to  demand  delivery.  The  right  is  dependent  upon  the 
preservation  of  his  credit,  and,  if  he  becomes  insolvent  before  he  ob- 
tains actual  possession,  the  lien  of  the  vendor  revives,  and  the  in- 
solvent vendee  must  pay  the  purchase  price  before  he  can  deprive' 
the  vendor  of  the  goods  remaining  in  his  possession.  So,  if  the 
vendor,  for  any  reason,  remain  in  the  actual  possession  until  the 
period  of  credit  has  expired,  his  lien  revives.  Now,  a  subvendee* 
buys  only  this  defeasible  right  of  the  vendee ;  and,  if  he  does  not 
obtain  the  actual  possession  or  obtain  from  the  vendor  an  actual 
attornment  to  him,  as  is  Hurry  v.  Mangles,  cited  heretofore,  and 
the  credit  given  the  vendee  expires  while  the  vendor  holds  the  actual 
possession,  or  the  vendee  becomes  insolvent,  he  cannot,  in  the  ab- 
sence of  some  estoppel,  deprive  the  unpaid  vendor  of  his  actual  pos- 
session. 

The  rights  of  subvendees  have  most  often  been  under  considera- 
tion in  cases  involving  the  doctrine  of  stoppage  in  transitu.  But  the 
principle  is  the  same  where  transit  has  not  begun.  It  was  well  said 
in  White  v.  Welsh,  38  Pa.  420,  that,  "if  a  vendor  has  a  right  of 
stoppage  in  transitu,  a  fortiori  he  has  a  right  of  retainer  before  any 
transit  has  begun."  Now  the  right  of  stoppage  in  transitu,  special 
legislation  out  of  the  way,  can  only  be  defeated  by  the  transfer  of 
a  bill  of  lading  to  an  indorsee  who  bona  fide  gave  value  for  it.  Benj. 
Sales  (Corb.  Ed.)  §  1285  ;  Lickbarrow  v.  Mason,  1  Smith,  Lead.  Cas. 
(Ed.  1879)  753.  It  will  not  be  defeated  by  a  mere  assignment  while 
in  transit,  or  by  an  attachment  by  creditors  of  vendee.  Benj.  Sales 
(Corb.  Ed.)  §  1242;  Mississippi  Mills  v.  Union  &  Planters'  Bank, 
9  Lea  (Tenn.)  318;  White  v.  Mitchell,  38  Mich.  390;  Harris  v.  Pratt, 
17  N.  Y.  249;  Umber  Co.  v.  O'Brien,  123  Mass.  12-14;  Calahan 
V.  Babcock,  21  Ohio  St.  281,  8  Am.  Rep.  63;  Stanton  v.  Eager,  16 
Pick.  (Mass.)  476;  Wood  v.  Yeatman,  15  B.  Mon.  (Ky.)  273;  Loeb 
V.  Peters,  63  Ala.  243,  35  Am.  Rep.  17.  No  subsale  during  transit 
will  defeat  the  right,  unless  the  bill  of  lading  be  transferred.  In  the 
late  case  of  Kemp  v,  Falk,  L.  R.  7  App.  Cas.  573-582,  it  was  said 
by  Lord  Blackburn  that  "no  sale,  even  if  the  sale  had  actually  been 
made  with  payment,  would  put  an  end  to  the  right  of  stoppage  in 
transitu." 

Now,  what  is  the  attitude  of  plaintiffs  in  error?  *  *  *  The 
best  that  can  be  said,  favorable  to  plaintiffs  in  error,  is  that  on  the  5th 
of  June,  1893,  they  for  the  first  time  obtained  the  title  and  right  of 
Barker  &  Co.  to  the .  specified  lumber  involved  in  this  controversy. 
Before  the  title  to  any  part  of  this  lumber  vested.  Barker  &  Co.  had 
failed.  Thereupon,  the  vendor's  lien  reattached,  even  assuming  that 
it  had  been  suspended  by  reason  of  the  extended  credit,  and  had 
not  been  saved  as  an  effect  of  the  stipulation  concerning  renewals. 
On  this  state  of  facts,  the  observation  of  Lord  Blackburn,  in  Kemp 
V.  Falk,  L.  R.  7  App.  Cas.  582,  is  in  point,  that:    "Why  an  agree- 


458  RIGHTS   OF    UNPAID    SKLLER    AGAINST  THE   GOODS  (Ch.  5 

ment  to  sell,  unless  it  was  made  in  such  a  way  as  to  pass  the  riglit 
of  property  in  the  goods  sold,  should  be  supposed  to  put  an  end  to 
the  equitable  right  to  stop  them  in  transitu,  I  cannot  understand."  "I 
am  quite  clear,"  adds  his  lordship,  "that  it  does  not." 

If  we  are  right  in  these  conclusions,  it  follows  that  defendant  in 
error  is  entitled  to  assert  its  vendor's  lien,  unless  still  other  aspects  of 
the  case  shall  raise  an  estoppel.  *  *  *  [The  court  held  that  there 
was  nothing  to  estop  the  defendant  from  asserting  its  lien,  and  af- 
firmed the  judgment  for  the  defendant.] 


CRUA'BIEY  V.  RAUDENBUSH. 

(Supreme  Coiu't  of  Minnesota,  1S93.     55  Minn.  426,  56  N.  W.  111.3.) 

This  action  was  brought  to  recover  $225  damages  for  breach  of  a 
contract,  of  which  the  following  is  a  copy: 

"St.  Paul,  April  2,  1889. 
"Received  of  George  B.  Crummey  one  Schumacher  square  piano  at 
$225.00  in  part  pay  for  No.  3  Schumacher  upright  piano  in  walnut, 
mahogany  or  ebony,  at  $500.00,  balance  $275.00,  to  be  paid  at  $50.00 
per  quarter,  from  date  of  delivery  of  upright  piano — 8  per  cent,  per 
annum.  S.  W.  Raudenbush." 

Defendant  answered  that  he  was  and  ever  had  been  ready  and  will- 
ing to  deliver  the  new  upright  piano  on  receiving  the  $275.  He  al- 
leged that  he  had  learned  that  plaintiff  was  insolvent,  and  he  claimed 
the  right  to  retain  the  piano  until  paid  the  balance  of  the  price.  The 
trial  court  sustained  this  defense  and  directed  judgment  that  plain- 
tiff take  nothing  by  this  action.  He  moved  for  a  new  trial,  and  being 
denied  appeals. 

Mitchell,  J.  Stated  according  to  its  legal  effect,  the  contract, 
upon  which  this  action  was  brought,  was  an  executory  one  for  the 
sale  of  a  piano  by  defendant  to  plaintiff,  a  part  of  the  price  being 
paid  at  the  date  of  the  contract,  and  the  balance  to  be  paid  in  quar- 
terly installments  from  and  after  the  date  of  the  delivery  of  the  piano. 
The  action  is  for  damages  for  a  refusal  to  supply  the  piano  accord- 
ing to  the  contract.  It  is  not  alleged  that  the  balance  of  the  price  has 
ever  been  paid  or  tendered,  the  plaintiff  standing  on  the  terms  of  the 
contract  that  it  was  to  be  furnished  on  credit.  Much  of  the  answer 
consists  of  entirely  irrelevant  matters,  the  only  defense  alleged  being 
that  since- the  making  of  the  contract  the  plaintiff  had  become,  and  still 
is,  insolvent,  and  the  only  important  question  in  the  case  is  whether 
the  defendant  has  established  a  defense  justifying  his  refusal  to  de- 
liver the  piano  on  that  ground. 

Where  a  vendor  contracts  to  sell  personal  property  on  credit,  he 
[thereby  agrees  to  waive  his  lien  for  the  purchase  money;  but  he  does 
/  so  on  the  implied  condition  that  the  vendee  shall  keep  his  credit  good. 


Sec.  1)  LIEN  459 

If,  therefore,  before  payment,  and  while  the  vendor  still  retains  pos- 
session of  the  property,  he  discovers  that  the  vendee  is  insolvent,  he 
may  hold  the  goods  as  security  for  the  price.  The  insolvency  of  the 
vendee  does  not  rescind  the  contract,  and  is  not  of  itself  a  ground  for 
rescission.  It  merely  entitles  the  vendor  to  demand  payment  in  cash 
before  parting  with  possession  of  the  property.  Courts  have  differed 
as  to  the  name  to  be  given  to  this  right,  but  they  all  recognize  its  ex- 
istence. Like  the  analogous  right  of  stoppage  in  transitu,  it  grows  outl 
of  the  vendor's  original  ownership  and  dominion,  and  is  founded  onj 
the  equitable  principle  that  one  man's  property  ought  not  to  go  to  pay 
another  man's  debt. 

The  right  is  not  limited  to  cases  where  the  insolvency  of  the  vendee 
occurred  after  the  date  of  the  contract,  but  exists  also  even  where  the 
insolvency  existed  at  that  time,  but  was  not  discovered  by  the  ven- 
dor until  afterwards ;  and,  as  the  presumption  of  both  reason  and 
law  is  that,  where  a  vendor  sold  goods  on  credit,  he  believed  that  the 
purchaser  was  solvent  and  able  to  pay,  the  burden  is  on  the  vendee 
to  prove  that  the  vendor  had  knowledge  of  the  insolvency  at  the  time, 
and  entered  into  the  contract  with  that  knowledge.  The  right  is  not  af- 
fected by  the  fact  that  part  of  the  price  has  been  paid ;  and  it  makes 
no  difference  whether  the  sale  was  of  a  specific  article  appropriated 
to  the  contract,  or,  as  in  this  case,  a  contract  to  supply  an  article  of  a 
certain  description.  The  term  "insolvent"  is  not  used  in  any  technical 
sense.  It  is  not  necessary  that  the  vendee  should  have  been  adjudged 
a  bankrupt  or  insolvent,  or  have  made  an  assignment  of  his  property. 
Insolvency,  as  applied  to  this  branch  of  law,  means  a  general  inability 
to  pay  one's  debts  or  to  meet  one's  financial  engagements. 

Passing  to  the  facts  of  this  case,  an  examination  of  the  evidence 
satisfies  us  that  it  amply  justified  the  trial  court  in  finding  that  the 
plaintiff  was  insolvent  in  the  fullest  sense  of  the  term.  It  follows  that 
defendant  had  a  right  to  refuse  to  deliver  the  property  without  pay- 
ment in  full  of  the  price,  provided  he  properly  asserted  that  right,  and 
had  not  in  some  way  waived  it. 

The  contract  was  made  in  April,  1889.  The  evidence  is  practically 
undisputed  that  for  some  two  years  afterwards  the  defendant  was  not 
only  abir  and  ready  to  furnish  the  piano,  but  repeatedly  urged  the  plain- 
tiff' to  come  and  select  an  instrument,  but  that  he  failed  to  do  so,  giving 
as  a  reason  his  inability  to  meet  the  payments.  Finally,  in  the  winter 
or  early  spring  of  1893,  after  defendant  had  ceased  to  represent  that 
make  of  piano  in  the  trade,  and  hence  no  longer  kept  it  in  stock,  the 
plaintiff  for  the  first  time  formally  demanded  the  delivery  of  the  in- 
strument within  a  specified  time.  Failing  in  some  efforts  to  induce 
plaintiff  to  accept  a  piano  of  another  kind,  the  defendant  required 
some  assurance  that,  if  he  procured  a  piano  of  the  kind  called  for  by 
the  contract,  the  plaintiff  would  be  ready  to  pay  for  it  in  cash,  or  give 
a  mortgage  on  the  instrument  to  secure  the  purchase  price.  The  plain- 
tiff positively  refused  to  agree  to  do  either,  and  insisted  on  the  terms 


4G0  RIGUTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

of  tlie  original  contract   for  the  delivery  of  the  property  on  credit, 
which  defendant  as  positively  refused  to  do. 

The  evidence  would  fully  justify  the  conclusion  that  the  defendant 
was  always  willing  to  furnish  the  piano  if  plaintiff  would  pay  the  price 
in  cash,  or  secure  it  by  mortgage  on  the  property,  and  that  his  refusal 
merely  went  to  the  extent  of  refusing  to  furnish  it  on  credit  without 
security. 

But  at  no  time  during  the  negotiations  did  defendant  assign  the  in- 
solvency of  the  plaintiff  as  his  reason  for  demanding  cash  or  security, 
or  give  any  special  reason  for  doing  so,  except  that  when  demanding 
the  mortgage  he  said  it  was  the  custom  of  the  trade.  On  this  ground 
plaintiff's  counsel  invoke  the  doctrine  that  if  a  person,  when  called 
upon  to  deliver,  places  his  right  to  retain  the  goods  upon  a  ground 
inconsistent  with  a  claim  by  virtue  of  a  specific  lien,  this  is  a  waiver 
of  the  lien ;  and  that  on  the  trial  he  will  not  be  permitted  to  rest  his 
refusal  on  a  different  and  distinct  ground  from  that  on  which  he 
claimed  to  retain  the  property  at  the  time  of  the  demand. 

An  examination  of  the  authorities  on  the  subject,  from  the  early 
case  of  Boardman  v.  Sill,  1  Camp.  410,  down,  satisfies  us  that  they 
all  proceed  upon  principles  essentially  of  equitable  estoppel,  and  limit 
the  application  of  the  doctrine  invoked  by  counsel  to  cases  where  the 
refusal  to  deliver  the  property  was  put  on  grounds  inconsistent  with 
the  existence  of  a  lien,  or  on  grounds  entirely  independent  of  it,  with- 
out mentioning  a  lien.  Thus  it  has  been  repeatedly  held  that  a  lien 
is  not  waived  by  mere  omission  to  assert  it  as  the  ground  of  refusal. 
or  by  a  general  refusal  to  surrender  the  goods,  without  specifying  the 
ground  of  it,  except  in  certain  cases,  where  the  lien  was  unknown  to 
the  person  making  the  demand,  and  that  fact  was  known  to  the  per- 
son on  whom  the  demand  was  made.  In  such  cases,  if  the  ground  of 
the  refusal  is  one  that  can  be  removed,  the  other  party  ought  in  fair- 
ness to  have  an  opportunity  to  do  so. 

But  no  such  state  of  facts  exists  in  this  case.  While  defendant  did 
not  specify  his  vendor's  lien  by  reason  of  plaintiff's  insolvency  as  the 
ground  of  his  refusal,  yet  he  never  placed  his  refusal  on  any  ground 
inconsistent  with  or  independent  of  it.  On  the  contrary,  from  first  to 
last,  what  he  insisted  on  was  payment  of,  or  security  for,  the  price  of 
the  property ;  and  the  ground  of  his  refusal  was  the  refusal  of  plain- 
tiff to  give  either.  True,  at  the  last,  he  announced  his  positive  refusal 
to  furnish  the  piano  unless  plaintiff  would  agree  to  give  a  chattel 
mortgage  on  it, — a  thing  which  he  had  no  legal  right  to  insist  on ;  but 
it  is  very  evident  that  this  demand  on  defendant's  part  was  merely  an 
alternative  for  payment  in  cash,  which  he  had  a  right  to  demand,  bnt 
which  plaintiff  had  refused. 

The  plaintiff  probably  had  a  right  to  be  informed,  as  he  was,  that 
the  property  was  held  for  the  purchase  money,  for  that  was  a  matter 
which  he  could  remedy  by  payment,  but  it  would  have  availed  him 
nothing  to  be  informed  that  defendant's  right  to  retain  the  property 


Sec.  1)  LIEN  461 

for  the  price  was  based  on  his  insolvency,  for  that  was  a  fact  which 
he  could  not  have  changed.  We  can  see  nothing  in  defendant's  acts 
of  omission  or  commission  that  amounted  to  a  waiver  of  his  title,  or 
which  should  estop  him  from  now  asserting  it. 

The  rulings  of  the  trial  court  on  the  admissibility  of  evidence  as  to 
plaintiff's  insolvency  were  not  always  correct,  or  even  consistent ;  but 
the  only  error  of  which  plaintiff  could  complain  is  that,  in  one  in- 
stance, the  defendant  was  allowed  to  give  his  opinion  that  plaintiff 
was  insolvent. 

We  think,  however,  that  this  was  error  without  prejudice,  for  the 
reason  that  the  other  evidence,  such  as  plaintiff's  own  admission  of 
inability  to  pay;  the  inability  of  others,  after  search  and  inquiry,  to 
find  any  property  belonging  to  him ;  and  that  he  was  not  in  any  busi- 
ness in  this  state,  of  which  he  had  practically  ceased  to  be  a  resident, 
— was  such  as,  in  the  absence  of  any  rebutting  evidence,  to  require  a 
finding  that  he  was  insolvent. 

Order  affirmed.^ 


AMES  V.  MOIR  et  al. 
(Supreme  Court  of  Illinois,  18S9.     1.30  111.  .582,  22  N.  E.  .5.85.) 

Craig,  Jr  This  was  an  action  of  assumpsit  brought  by  Robert  Moir 
&  Co.  in  the  superior  court  of  Cook  county  against  Wilson  Ames,  to 
recover  the  price  of  100  barrels  of  high  wines  sold  by  the  plaintiff's  to 
the  defendant  on  the  9th  day  of  June,  1870.  The  action  was  brought 
upon  a  contract  in  writing,  which  was  as  follows : 

"Chicago,  June  9,   1870. 

"I  have  this  day  bought  of  Robert  Moir  &  Co.  one  hundred  (100) 
barrels  high  wines,  'iron  bound,'  at  one  dollar  seven  cents  ($1.07)  per 
proof  gallon.  The  conditions  of  sale  are  as  follows :  The  buyer  can 
call  from   1st  July  to  20th  of  same  month  by  giving  three  days'  no- 

2  In  Douglas  v.  Shumway,  13  Gray  (Mass.)  498  (18.59),  Bigelow,  J.,  said: 
"The  evidence  offered  in  support  of  the  defendant's  claim  to  a  lieu  as  vendor 
of  the  wood  was  rightly  rejected.  The  contract  of  sale  contemplated  that  the 
vendee  should  expend  labor  and  money  in  felling  the  trees  and  preparing  the 
wood  for  market ;  and  the  case  finds  that  the  wood  had  been  cut  by  the  ven- 
dee, and  a  portion  thereof  sold  by  him  and  hauled  off  the  land.  We  think 
these  facts  are  incon.sistent  with  an  existing  right  of  lien  in  the  vendor  for 
the  purchase  money.  We  know  of  no  case  where  such  a  right  has  been  recog- 
nized, after  the  vendee  has,  at  his  own  expense,  in  pursuance  of  the  contract 
■of  sale,  changed  the  character  of  the  property,  and  by  his  own  labor  and 
money  added  to  its  value.  By  these  acts  the  vendor  must  be  deemed  to  have 
parted  with  his  possession  and  control  of  the  property.  The  vendee,  by  him- 
self and  his  agents,  had  taken  it  into  his  actual  po.ssession,  and  incorporated 
with  it  the  labor  bestowed  by  him  in  preparing  it  for  sale.  There  was  there- 
fore such  a  change  of  possession  from  the  vendor  to  the  vendee  as  to  defeat 
any  right  of  lien  in  the  vendor.  Upon  this  ground,  the  case  is  clearly  dis- 
tinguishable from  Arnold  v.  Delano,  4  Cush.  33  [50  Am.  Dec.  754.]" 

3  Part  of  the  opinion  is  omitted. 


462  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

tice,  and,  if  not  called  for  by  the  20th  July,  the  seller  has  the  priv- 
ilege of  delivering  up  to  the  end  of  July  by  giving  three  days'  notice ; 
to  be  delivered  in  fifty  barrel  lots.  To  insure  the  fulfillment  of  this 
contract,  a  margin  of  $300  will  be  put  up  by  both  parties. 

''Wilson  Ames." 

This  instrument  of  writing,  after  it  was  executed  by  Ames  on 
the  day  it  bears  date,  was  at  once  delivered  to  the  agents  of  ]\Ioir  & 
Co.,  and  accepted  by  them.  On  the  same  day  a  margin  of  $300  was 
put  up  by  each  party  as  provided  in  the  agreement.  It  also  appears 
that  on  the  15th  day  of  July,  1870,  Ames  notified  the  agents  of  ]Moir 
&  Co.  to  deliver  the  high  wines.  Upon  receipt  of  the  notice  the  high 
wines  were  on  July  18  delivered  by  Moir  &  Co.,  and  accepted  by 
Ames,  but  Ames  has  never  paid  for  the  goods.     *     *     * 

After  the  high  wines  had  been  delivered,  late  in  the  afternoon  of 
July  18,  Ames  absented  himself  from  his  place  of  business,  and  could 
not  be  found  by  the  agents  of  Aloir  &  Co.  to  make  a  demand  of  pay- 
ment for  the  high  wines.  They  directed  the  porter  in  charge  of 
Ames'  warehouse  to  take  care  of  the  goods  until  morning,  when  they 
would  call  for  the  pay.  When  the  agents  called  in  the  morning,  Ames 
was  nowhere  to  be  found,  and  they  found  that  he  had  shipped  50 
barrels  of  the  high  wines  for  New  York,  and  the  remaining  50  barrels 
were  loaded  on  cars  ready  for  shipment.  Phillips  &  Carmichael  im- 
mediately replevied  the  50  barrels  which  were  found  on  cars  in  Chi- 
cago, and  went  on  to  Detroit,  Mich.,  where  they  overhauled  the  other 
50  barrels,  and  they  were  also  replevied.  Phillips  &  Carmichael 
sold  the  wines  thus  replevied  to  Shufeldt  &  Co.  at  97  cents  per  gallon, 
the  market  price  at  that  time,  and  deposited  the  proceeds  in  bank  to 
await  the  result  of  the  replevin  suits.  It  appears  that  between  the 
time  the  wines  were  delivered,  late  in  the  afternoon  of  July  18,  and 
the  time  the  agents  reached  Ames'  store  next  morning,  Ames  had 
sent  all  the  wines  to  the  ^Michigan  Central  depot,  shipped  them,  ob- 
tained bills  of  lading,  which  were  attached  to  drafts  on  the  consignee 
in  New  York,— one  for  $2,800,  and  the  other  for  $2,900,— which 
drafts  he  discounted  at  the  National  Bank  of  Commerce  on  the  se- 
curity of  the  bills  of  lading.  The  replevin  suits  were  defended  by 
ithe  National  Bank  of  Commerce,  and  the  defense  interposed  that  the 
/bank  was  the  pledgee  of  the  high  wines  from  Ames  in  good  faith, 
[and  without  notice  of  Moir  &  Co.'s  rights,  was  in  the  end  sustained, 
(see  Alichigan  Central  Railroad  Co.  v.  Phillips,  60  111.  190;)  and  the 
money  realized  on  the  sale  of  the  high  wines  to  Shufeldt  &  Co.  w^as 
^urned  over  to  the  National  Bank  of  Commerce  in  payment  of  the 
drafts. 

In  view  of  the  fact  that  the  wines  were  thus  replevied  and  sold 
by  the  agents  of  INIoir  &  Co.,  it  is  insisted  that  Moir  &  Co.  elected 
to  rescind  the  contract  under  which  the  high  wines  were  sold  to  Ames, 
and,  having  so  elected,  they  cannot  now  maintain  an  action  upon  it. 


Sec.  1)  LIEN 


46a 


It  may  be  conceded  that  a  contract  for  the  sale  of  goods  cannot  be 
rescinded,  and  at  the  same  time  an  action  be  maintained  upon  it  for 
the  contract  price  of  the  goods.  But  we  do  not  understand  that  the 
contract  in  this  case  was  rescinded,  or  that  any  effort  whatever  was 
made  to  rescind  the  contract.  When  the  wines  were  deHvered,  Aloir 
&  Co.  were  entitled  to  payment.  The  delivery  and  payment  were  con| 
current  acts,  and  Moir  &  Co.  were  not  bound  to  part  with  the  abso4 
lute  possession  of  the  goods  until  they  received  the  price  named  ir^ 
the  contract.  In  other  words,  they  had  a  lien  on  the  goods  for  the 
purchase  money,  which  they  were  under  no  obligations  to  relinquish 
until  payment  was  made.  In  Canadian  Bank  v.  McCrea,  106  111.  298, 
this  court  held  that  when  goods  are  placed  by  the  vendor  in  the  hands 
of  the  purchaser,  in  expectation  that  he  will  immediately  pay  the  price, 
and  he  fails  to  do  so,  the  vendor  is  at  liberty  to  regard  the  delivery 
as  conditional,  and  may  at  once  reclaim  the  goods.  But  by  holding 
the  possession  of  the  goods,  or  reclaiming  them  after  the  purchaser 
refuses  to  pay,  the  contract  of  sale  is  not  thereby  rescinded.  The 
vendor  merely  retains  possession  to  enforce  his  lien  as  vendor. 

What  are  the  rights  of  a  vendor  of  goods  where  the  vendee  re- 
fuses to  pay  upon  delivery  or  on  offer  to  deliver  goods?  This  ques- 
tion arose  in  Bagley  v.  Findlay,  82  111.  525,  and  this  court  held  that 
the  vendor  had  three  remedies :  (1)  The  vendor  may  store  the  goodsri 
for  the  vendee,  give  notice  that  he  has  done  so,  and  then  recover  the 
full  contract  price.  (2)  He  may  keep  the  goods,  and  recover  the 
excess  of  the  contract  price  over  and  above  the  market  price  of  the 
goods  at  the  time  and  place  of  delivery.  (3)  The  vendor  may  sell 
the  goods  to  the  best  advantage,  and  recover  of  the  vendee  the  loss, 
if  the  goods  failed  to  bring  the  contract  price.  The  same  rule  is 
laid  down  in  Benj.  on  Sales,  (2d  Ed.)  §  788. 

Here  the  possession  of  the  goods  was  fraudulently  obtained,  with 
the  view  to  ship  them  out  of  the  state,  and  not  pay  the  purchasci 
money  agreed  to  be  paid.  As  against  Ames,  Moir  &  Co.  had  the 
right  to  replevy  the  goods,  not  for  the  purpose  of  rescinding  the 
contract,  but  for  the  purpose  of  asserting  the  vendor's  lien,  and  hold- 
ing the  possession  of  the  goods  until  Ames  should  pay  for  the  same. 
It  turned  out,  however,  that  the  action  of  replevin  was  unavailing, 
as  the  goods  had  by  the  act  of  Ames  passed  into  the  custody  of  in- 
nocent purchasers  before  they  were  reached  by  the  writ  of  replevin, 
and  the  proceeds  of  the  goods  were  used  in  payment  of  the  advances 
of  the  National  Bank  of  Commerce.  Benj.  on  Sales,  §  735,  (2d  Ed.) 
says :  "The  vendor's  remedy  after  a  resale,  made  in  the  absence  of 
an  express  reservation  of  the  right,  is  assumpsit  on  the  original  con- 
tract, which  was  not  rescinded  by  the  resale."  This  was  the  course 
pursued  here,  and  we  regard  it  correct. 

We  have  been  referred  in  the  argument  to  Kellogg  v.  Turpie,  93 
111.  265,  34  Am.  Rep.  163,  and  Doane  v.  Lock  wood,  115  111.  490,  4 
N.  E.  500,  and  also  cases  decided  in  the  courts  of  other  states,  where 


464  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

it  has  been  held  that  the  rescission  of  a  contract  of  sale,  where  there 
was  fraud  in  the  contract,  was  inconsistent  with  a  subsequent  action 
on  the  contract;  that,  if  the  contract  was  rescinded  by  the  vendor 
on  the  ground  of  fraud  in  the  contract,  a  subsequent  action  on  the 
contract  itself  could  not  be  maintained.  We  concur  fully  in  the  law 
as  laid  down  in  these  cases,  but  they  have  no  application  to  the  facts 
of  this  case.  As  heretofore  stated,  the  commencement  of  the  action 
of  replevin  was  not  a  rescission  of  the  contract  by  Moir  &  Co.,  but 
it  was  a  proceeding  to  enforce  the  vendor's  lien.  To  place  the  wines 
in  that  position,  the  vendors  had  the  right  to  hold  them  in  until  the 
vendee  should  pay  for  them.  *  *  * 
Judgment  affirmed. 


SECTION  2.— STOPPAGE  IN  TRANSITU 


WISEMAN  V.  VANDEPUTT. 
(High  Court  of  Chancery,  1690.    2  Vera.  203.) 

The  plaintiffs  being  assignees  under  a  statute  of  bankruptcy  taken 
out  against  the  Bonnells,  brought  their  bill  for  a  discovery  and  re- 
lief, touching  two  cases  of  silk  at  first  consigned  by  Altoniti  and 
Antinori  to  the  Bonnells,  then  considerable  merchants  in  London ;  but 
before  the  ship  set  sail  from  Leghorne,  news  came  that  the  Bonnells 
were  failed,  and  thereupon  Altoniti  and  Antinori  alter  the  consign- 
ment of  the  silks,  and  consign  them  to  the  defendant. 

Upon  the  first  hearing  the  court  ordered  all  letters,  papers,  &c.  to 
be  produced,  and  that  the  parties  proceed  to  a  trial  in  Trover,  to  see 
whether  the  first  consignment,  notwithstanding  the  altering  thereof, 
and  new  consignment  made,  before  the  ship  sailed,  vested  the  prop- 
erty of  those  silks  in  the  Bonnells ;  and  upon  the  trial,  and  verdict 
being  given  for  the  plaintiffs,  the  cause  now  came  on  upon  the  equity 
reserved. 

The  court  declared  the  plaintiff's  ought  not  to  have  had  so  much 
as  a  discovery,  much  less  any  relief  in  this  court,  in  regard  that  the 
silks  were  the  proper  goods  of  the  two  Florentines,  and  not  of  the 
Bonnells,  nor  the  produce  of  their  effects ;  and  therefore  they  hav- 
ing paid  no  money  for  the  goods,  if  the  Italians  could  by  any  means 
get  their  goods  again  into  their  hands,  or  prevent  their  coming  into 
the  hands  of  the  bankrupts,  it  was  but  lawful  for  them  so  to  do,  and 
very  allowable  in  equity. 

And  it  was  so  ruled  in  the  like  case  between  Wigfall  and  Motteux, 
&c.  and  lately  between  Hitchcock  and  Sedgwick  in  case  of  a  pur- 
chase, without  notice  of  bankruptcy.     Therefore  decreed  an  account, 


Sec.  2)  STOPPAGE    IN    TRANSITU  465 

if  any  thing  due  from  the  ItaHans  to  the  Bonnells,  that  should  be  paid 
the  plaintiffs,  but  they  should  not  have  the  value  of  the  silks  by 
virtue  of  the  consignment  or  verdict,  and  put  the  Italians  to  come 
in  as  creditors  under  the  Statutes  of  Bankrupts. 


BURGHALL  v.  HOWARD. 
(At  Guildhall  after  Hilary,  1759.     1  H.  Bl.  .366,  note.) 

One  Burghall  at  London  gave  an  order  to  Bromley  at  Liverpool 
to  send  him  a  quantity  of  cheese.  Bromley  accordingly  shipped  a 
ton  of  cheese  on  board  a  ship  there,  whereof  Howard  the  Defendant 
was  master,  who  signed  a  bill  of  lading  to  deliver  it  in  good  condi- 
tion to  Burghall  in  London.  The  ship  arrived  in  the  Thames,  but 
Burghall  having  become  a  bankrupt,  the  Defendant  was  ordered  on 
behalf  of  Bromley  not  to  deliver  the  goods,  and  accordingly  refused, 
though  the  freight  was  tendered.  It  appeared  by  the  plaintiff's  wit- 
nesses that  no  particular  ship  was  mentioned,  whereby  the  cheese 
should  be  sent,  in  which  case  the  shipper  was  to  be  at  the  risk  of  the 
peril  of  the  seas.  The  action  was  on  the  case  upon  the  custom  of 
the  realm  against  the  Defendant  as  a  carrier. 

Lord  Mansfield  was  of  the  opinion  that  the  plaintiffs  had  no 
foundation  to  recover,  and  said  he  had  known  it  several  times  ruled 
in  Chancery,  that  where  the  consignee  becomes  a  bankrupt,  and  no' 
part  of  the  price  had  been  paid,  that  it  was  lawful  for  the  consignor 
to  seize  the  goods  before  they  come  to  the  hands  of  the  consignee,  or 
his  assignees ;  and  that  this  was  ruled,  not  upon  principles  of  equity 
only,  but  the  laws  of  property.  See  Lickbarrow  v.  JMason,  6  East, 
27,  note. 

The  plaintiff's  were  nonsuited.* 


LICKBARROW  et  al.  v.  MASON  et  al. 

(House  of  Lords,  1793.     6  East,  20,  note.) 

Trover  for  a  cargo  of  corn.  Plea  the  general  issue.  The  plaintiffs, 
at  the  trial  before  Buller,  J.,  at  the  Guildhall  Sittings  after  last  Easter 
Term,  gave  in  evidence  that  Tur.'r-j  &  Son,  merchants  at  Middlebourg 
in  the  province  of  Zealand,  on  the  22d  July,  1786,  shipped  the  goods 
in  question  on  board  the  Endeavour  for  Liverpool  by  the  order  and 
directions  and  on  the  account  of  Freeman  of  Rotterdam.  That 
Holmes,  as  master  of  the  ship,  signed  four  several  bills  of  lading  for 
the  goods  in  the  usual  form  unto  order  or  to  assign ;    two  of  which 

4As  as  to  the  existence  of  the  right  of  stoppage  in  transitu  in  the  civil 
law,  see  Williston,  Sales,  §  519. 

Woo  DW.  Sales — 30 


466  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

were  indorsed  by  Turing  &  Son  in  blank,  and  sent  on  the  22d  July, 
1786,  by  them  to  Freeman,  together  with  an  invoice  of  the  goods,  who 
afterwards  received  them ;  another  of  the  bills  of  lading  was  retained 
by  Turing  &  Son,  and  the  remaining  one  was  kept  by  Holmes.  On 
the  25th  July,  1786,  Turing  &  Son  drew  four  several  bills  of  exchange 
upon  Freeman,  amounting  in  the  whole  to  £477.  in  respect  of  the  price 
of  the  goods,  which  were  afterwards  accepted  by  Freeman.  On  the 
25th  of  July,  1786,  Freeman  sent  to  the  plaintiffs  the  two  bills  of  lad- 
ing together  with  the  invoice  which  he  had  received  from  Turing  & 
Son  in  the  same  state  in  which  he  received  them,  in  order  that  the 
goods  might  be  taken  possession  of  and  sold  by  them  on  Freeman's 
account ;  and  on  the  same  day  Freeman  drew  three  sets  of  bills  of  ex- 
change to  the  amount  of  £520.  on  the  plaintiffs,  who  accepted  them 
and  have  since  duly  paid  them. 

The  plaintiffs  are  creditors  of  Freeman  to  the  amount  of  £542.  On 
the  15th  August,  1786,  and  before  the  four  bills  of  exchange  drawn 
by  Turing  &  Son  on  Freeman  became  due,  Freeman  became  a  bank- 
rupt; those  bills  were  regularly  protested,  and  Turing  &  Son  have 
(since  been  obliged,  as  drawers,  to  take  them  up  and  pay  them.  The 
price  of  the  goods  so  shipped  by  Turing  &  Son  is  wholly  unpaid. 

Turing  &  Son  hearing  of  Freeman's  bankruptcy  on  the  21st  of 
August,  1786,  indorsed  the  bill  of  lading  so  retained  by  them  to  the 
defendants,  and  transmitted  it  to  them,  with  an  invoice  of  the  goods, 
authorizing  them  to  obtain  possession  of  the  goods  on  account  of  and 
for  the  use  and  benefit  of  Turing  &  Son,  which  the  defendants  re- 
ceived on  the  28th  August.  1786.  On  the  arrival  of  the  vessel  with 
the  goods  at  Liverpool  on  the  28th  August,  17.86,  the  defendants  ap- 
plied to  Holmes  for  the  goods,  producing  the  bill  of  lading,  who  there- 
upon delivered  them,  and  the  defendants  took  possession  of  them  for 
and  on  account  of  and  to  and  for  the  use  and  benefit  of  Turing  &  Son. 
The  defendants  sold  the  goods  on  the  account  of  Turing  &  Son,  the 
proceeds  whereof  amounted  to  £557.  Before  the  bringing  of  this  ac- 
tion the  plaintiffs  demanded  the  goods  of  the  defendants,  and  tendered 
to  them  the  freight  and  charges ;  but  neither  the  plaintiffs  or  Free- 
man have  paid  or  offered  to  pay  the  defendants  for  the  goods.  To  this 
evidence  the  defendants  demurred;  and  the  plaintiffs  joined  in  de- 
murrer.^ 

The  Court  of  King's  Bench  gave  judgment  for  the  plaintiff,  which 
was  reversed  in  the  Exchequer  Chamber,  and  the  judgment  of  the  Ex- 
chequer Chamber  was  in  turn  reversed  in  the  House  of  Lords,  and  a 
venire  facias  de  novo  directed  to  be  awarded.  The  ground  of  the  re- 
versal in  the  House  of  Lords  was  that  the  demurrer  to  evidence  ap- 
peared to  be  informal  on  the  record  ]\IS.  On  the  principal  question 
Buller  J.,  delivered  an  elaborate  opinion. 

5  This  statement  of  facts  is  taken  from  the  report  of  the  case  in  the  King's 
Bench,  2  Term.  Rep.  63. 


Sec.  2)  STOPPAGE    IN    TRANSITU  467 

BuLi^ER,  J.6  *  *  *  But  the  second  question  made  in  the  cause 
is  that,  however  the  legal  property  be  decided,  the  defendants,  who 
stand  in  the  place  of  the  original  owner,  had  a  right  to  stop  the  goods 
in  transitu,  and  have  a  lien  for  the  original  price  of  them.     Before 

1  consider  the  authorities  applicable  to  this  part  of  the  case,  I  will 
beg  leave  to  make  a  few  observations  on  the  right  of  stopping  goods 
in  transitu,  and  on  the  nature  and  principle  of  liens.  1st.  Neither 
of  them  are  founded  on  property;  but  they  necessarily  suppose  the 
property  to  be  in  some  other  person,  and  not  in  him  who  sets  up 
either  of  these  rights.  They  are  qualified  rights,  which  in  given 
cases  may  be  exercised  over  the  property  of  another;  and  it  is  a 
contradiction  in  terms  to  say  a  man  has  a  lien  upon  his  own  goods, 
or  a  right  to  stop  his  own  goods  in  transitu.  If  the  goods  be  his,  he 
has  a  right  to  the  possession  of  them  whether  they  be  in  transitu 
or  not :  he  has  a  right  to  sell  or  dispose  of  them  as  he  pleases,  with- 
out the  option  of  any  other  person:  but  he  who  has  a  lien  only  on 
goods  has  no  right  so  to  do ;  he  can  only  retain  them  till  the  original 
price  be  paid :  and  therefore  if  goods  are  sold  for  £500.  and  by  a 
change  of  the  market,  before  they  are  delivered,  they  become  next 
day  worth  £1000.  the  vendor  can  only  retain  them  till  the  £500.  be 
paid,  unless  the  bargain  be  absolutely  rescinded  by  the  vendee's  re- 
fusing to  pay  the  £500.  2dly.  Liens  at  law  exist  only  in  cases  where 
the  party  entitled  to  them  has  the  possession  of  the  goods;  and  if 
he  once  part  with  the  possession  after  the  lien  attaches,  the  lien  is 
gone.  3dly.  The  right  of  stopping  in  transitu  is  founded  wholly  on 
ecjuitable  principles,  which  have  been  adopted  in  courts  of  law ;  and 
as  far  as  they  have  been  adopted,  I  agree  they  will  bind  at  law  as 
well  as  in  equity.  So  late  as  the  year  1690,  this  right,  or  privilege, 
or  whatever  it  may  be  called,  was  unknown  to  the  law. 

The  first  of  these  positions  is  self  evident,  and  requires  no  argu- 
ment to  prove  it.  As  to  the  second,  which  respects  liens,  it  is  known 
and  unquestionable  law,  that  if  a  carrier,  a  farrier,  a  tailor,  or  an 
inn-keeper,  deliver  up  the  goods,  his  lien  is  gone.  So  also  is  the  case 
of  a  factor  as  to  the  particular  goods :  but  by  the  general  usage  in 
trade  he  may  retain  for  the  balance  of  his  account  all  goods  in  his 
hands,  without  regard  to  the  time  when  or  on  what  account  he  re- 
ceived them.  In  Snee  v.  Prescott,  Lord  Hardwicke  says,  that  which 
not  only  applies  to  the  case  of  liens,  but  to  the  right  of  stopping 
goods  in  transitu  under  circumstances  similar  to  the  case  in  judg- 
ment ;  for  he  says,  where  goods  have  been  negotiated,  and  sold  again, 
there  it  would  be  mischievous  to  say  that  the  vendor  or  factor  should 
have  a  lien  upon  the  goods  for  the  price ;  for  then  no  dealer  would 
know  when  he  purchased  goods  safely.     So  in  Lempriere  v.  Pasley, 

2  Term  Rep.  485,  the  Court  said  it  would  be  a  great  inconvenience 
to  commerce  if  it  were  to  be  laid  down  as  law,  that  a  man  could 
never  take   up  money  upon   the  credit  of  goods  consigned  till  they 

6  Part  of  the  opinion  is  omitted. 


468  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Cll.  5 

.actually  arrived  in  port.  There  are  otiier  cases  which  in  my  judg- 
ment apply  as  strongly  against  the  right  of  seizing  in  transitu  to  the 
extent  contended  for  by  the  defendants ;  but  before  I  go  to  them, 
with  your  Lordship's  permission,  I  will  state  shortly  the  facts  of  the 
case  of  Snee  v.  Prescott,  with  a  few  more  observations  upon  it. 

The  doctrine  of  stopping  in  transitu  owes  its  origin  to  courts  of 
equity;  and  it  is  very  material  to  observe  that  in  that  case,  as  well 
as  many  others  which  have  followed  it  at  law,  the  question  is  not 
as  the  counsel  for  the  defendants  would  make  it,  whether  the  prop- 
erty vested  under  the  bill  of  lading;  for  that  was  considered  as  be- 
ing clear;  but  whether,  on  the  insolvency  of  the  consignee,  who  had 
not  paid  for  the  goods,  the  consignor  could  countermand  the  consign- 
ment, or  in  other  words  devest  the  property  which  was  vested  in  the 
consignee.  Snee  and  Baxter,  assignees  of  John  Toilet  v.  Prescott 
and  Others,  1  Atk.  245.  Toilet,  a  merchant  in  London,  shipped  to 
Ragueneau  &  Co.,  his  factors  at  Leghorn,  serges  to  sell,  and  to  buy 
double  the  value  in  silks,  for  which  the  factors  were  to  pay  half  in 
ready  money  of  their  own,  which  Toilet  would  repay  by  bills  drawn 
on  him.  The  silks  were  bought  accordingly,  and  -shipped  on  board 
Dawson's  ship,  marked  T;  Dawson  signed  three  bills  of  lading,  to 
deliver  at  London  to  factors,  consignors,  or  their  order.  The  factors 
indorsed  one  bill  of  lading  in  blank,  and  sent  it  to  Toilet,  who  filled 
up  the  same  and  pawned  it.  The  bills  drawn  by  the  factors  on  Toilet 
were  not  paid,  but  Toilet  became  a  bankrupt.  The  factors  sent  an- 
other bill  of  lading,  properly  indorsed,  to  Prescott,  who  offered  to 
pay  the  pawnee,  but  he  refused  to  deliver  up  the  bill  of  lading;  on. 
which  Prescott  got  possession  of  the  goods  from  Dawson,  under  the 
last  bill  of  lading.  The  assignees  of  Toilet  brought  the  bill  to  re- 
deem by  paying  the  pawnee  out  of  the  money  arising  by  sale,  and  to 
have  the  rest  of  the  produce  paid  to  them ;  and  that  the  factors,  al- 
though in  possession  of  the  goods,  should  be  considered  as  general 
creditors  only,  and  be  driven  to  come  in  under  the  commission.  De- 
creed, 1st,  that  the  factors  should  be  paid;  2d,  the  pawnees;  and  3d, 
the  surplus  to  the  assignees. 

The  decree  was  just  and  right  in  saying  that  the  consignor,  who 
never  had  been  paid  for  the  goods,  and  the  pawnees,  who  had  ad- 
vanced money  upon  the  goods  should  both  be  paid  out  of  the  goods 
before  the  consignee  or  his  assignees  should  derive  any  benefit  from 
them.  That  was  the  whole  of  the  decree ;  and  if  the  circumstance 
of  the  consignor's  interest  being  first  provided  for  be  thought  to  have 
any  weight,  I  answer,  1st,  That  such  provision  was  founded  on  what 
is  now  admitted  to  be  an  apparent  mistake  of  the  law,  in  supposing 
that  there  was  a  difference  between  a  full  and  a  blank  indorsement. 
Lord  Hardwicke  considered  the  legal  property  in  that  case  to  remain 
in  the  consignor,  and  therefore  gave  him  the  preference.  2dly,  That 
whatever  might  be  the  law,  the  mere  fact  of  the  consignor's  be- 
ing in  possession  was  a   sufficient   reason   for   a  court  of   equity   to 


Sec.  2)  STOPPAGE  IN  TRANSITU  469 

say,  we  will  not  take  the  possession  from  you  till  you  have  been  paid 
what  is  due  to  you  for  the  goods.  Lord  Hardwicke  expressly  said, 
this  Court  will  not  say,  as  the  factors  have  re-seized  the  goods,  that 
they  shall  be  taken  out  of  their  hands  till  payment  of  the  half  price 
which  they  have  laid  down  upon  them.  He  who  seeks  equity  must 
do  equity;  and  if  he  will  not,  he  must  not  expect  relief  from  a  court 
of  equity.  It  is  in  vain  for  a  man  to  say  in  that  court,  I  have  the  law 
with  me,  unless  he  will  shew  that  he  has  equity  with  him  also.  If 
he  mean  to  rely  on  the  law  of  his  case,  he  must  go  to  a  court  of  law; 
and  so  a  court  of  equity  will  always  tell  him  under  those  circum- 
stances. 

The  case  of  Snee  v.  Prescott  is  miserably  reported  in  the  printed 
book:  and  it  was  the  misfortune  of  Lord  Hardwicke,  and  of  the 
public  in  general,  to  have  many  of  his  determinations  published  in 
an  incorrect  and  slovenly  way :  and  perhaps,  even  he  himself  by  be- 
ing very  diffuse  has  laid  a  foundation  for  doubts  which  otherwise 
would  never  have  existed.  I  have  quoted  that  case  from  a  MS.  note 
taken,  as  I  collect,  by  Mr.  John  Cox,  who  was  counsel  in  the  cause; 
and  it  seems  to  me  that  on  taking  the  whole  of  the  case  together,  it 
is  apparent  that  whatever  might  have  been  said  on  the  law  of  the 
case  in  a  most  elaborate  opinion,  Lord  Hardwicke  decided  on  the 
equity  alone  arising  out  of  all  the  particular  circumstances  of  it,  with- 
out meaning  to  settle  the  principles  of  law,  on  which  the  present 
case  depends.  In  one  part  of  his  judgment  he  says,  that  in  strictness 
of  law  the  property  vested  in  Toilet  at  the  time  of  the  purchase ;  but 
however  that  may  be,  says  he,  this  Court  will  not  compel  the  factors 
to  deliver  the  goods  without  being  disbursed  what  they  have  laid  out. 
He  begins  by  saying,  the  demand  is  as  harsh  as  can  possibly  come 
into  a  court  of  equity.  And  in  another  part  of  his  judgment  he  says, 
suppose  the  legal  property  in  these  goods  was  vested  in  the  bankrupt, 
and  that  the  assignees  had  recovered,  yet  this  Court  would  not  suffer 
them  to  take  out  execution  for  the  whole  value,  but  would  oblige 
them  to  account. 

But  further,  as  to   the  right  of  seizing  or  stopping  the  goods  iui 
transitu,  I  hold  that  no  man  who  has  not  equity  on  his  side  can  have! 
that  right.     I  will  say  with  confidence,  that  no  case  or  authority  till' 
the  present  judgment  can  be  produced   to   shew   that   he   has.     But 
on  the  other  hand,  in  a  very  able  judgment  delivered  by  my  brother 
Ashhurst  in  the  case  of  Lempriere  v.  Pasley,  in  1788,  (2  Term  Rep. 
485,)  he  laid  it  down  as  a  clear  principle  that  as  between  a  person 
who  has  an  equitable  lien,  and  a  third  person  who  purchases  a  thing 
for  a  valuable  consideration  and  without  notice,   the  prior  equitable 
lien  shall  not  overreach  the  title  of  the  vendee.     This  is  founded  on 
plain  and  obvious  reason ;    for  he  who  has  bought  a  thing  for  a  fair 
and  valuable  consideration,  and  without  notice  of  any  right  or  claim 
by  any  other  person,  instead  of  having  equity  against  him  has  equity 
in  his  favour :   and  if  he  have  law  and  equity  both  with  him,  he  can- 


470  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

not  be  beat  by  a  man  who  has  equal  equity  only.  Again,  in  a  very 
solemn  opinion  delivered  in  this  house  by  the  learned  and  respectable 
Judge  (Eyre,  then  Lord  C.  B.)  who  has  often  had  the  honour  of  de- 
livering the  sentiments  of  the  Judges  to  your  Lordships  when  you 
are  pleased  to  require  it,  so  lately  as  the  14th  May,  1790,  in  the  case 
of  Kinloch  v.  Craig,  3  Term  R.  787,  it  was  laid  down  that  the  right 
of  stopping  goods  in  transitu  never  occurred  but  as  between  vendor 
and  vendee ;  for  that  he  relied  on  the  case  of  Wright  v.  Campbell,  4 
Burr.  2050. 

Nothing  remains  in  order  to  make  that  case  a  direct  and  conclu- 
sive authority  for  the  present,  but  to  shew  that  this  is  not  the  case 
of  vendor  and  vendee.  The  terms  vendor  and  vendee  necessarily 
mean  the  two  parties  to  a  particular  contract :  those  who  deal  to- 
gether, and  between  whom  there  is  a  privity  in  the  disposition  of  the 
thing  about  which  we  are  talking.  If  A.  sells  a  horse  to  B.,  and  B. 
afterwards  sell  him  to  C,  and  C.  to  D.  and  so  on  through  the  alphabet, 
each  man  who  buys  the  horse  is  at  the  time  of  buying  him  a  vendee ; 
but  it  would  be  strange  to  speak  of  A.  and  D.  together  as  vendor  and 
vendee ;  for  A.  never  sold  to  D.,  nor  did  D.  ever  buy  of  A.  These 
terms  are  correlatives,  and  never  have  been  applied,  or  ever  can  be 
applied  in  any  other  sense  than  to  the  persons  who  bought,  and  sold 
to,  each  other.  The  defendants,  or  Turing,  in  whose  behalf,  and 
under  whose  name  and  authority  they  have  acted,  never  sold  these 
goods  to  the  plaintiffs ;  the  plaintiffs  never  were  the  vendees  of  ei- 
ther of  them.  Neither  do  the  plaintiffs,  (if  I  may  be  permitted  to 
repeat  again  the  forcible  words  of  the  noble  Judge  who  pronounced 
the  judgment  in  question,)  represent  Freeman,  so  as  to  be  answerable 
for  his  engagements,  or  stand  affected  by  any  notice  of  those  cir- 
cumstances which  would  bar  the  claim  of  Freeman  or  his  assignees. 
These  reasons,  which  I  could  not  have  expressed  with  equal  clear- 
ness, without  recurring  to  the  words  of  the  two  great  authorities 
by  whom  they  were  used,  and  to  whom  I  always  bow  with  reverence, 
in  my  humble  judgment  put  an  end  to  all  questions  about  the  right 
of  seizing  in  transitu. 

Two  other  cases  were  mentioned  at  the  bar  which  deserve  some 
attention.  One  is  the  case  of  the  assignees  of  Burghall  v.  Howard, 
1  H.  Blac.  365,  note,  before  Lord  Mansfield  at  Guildhall  in  1759, 
where  the  only  point  decided  by  Lord  Mansfield  was,  that  if  a  con- 
signee become  a  bankrupt,  and  no  part  of  the  price  of  the  goods  be 
paid,  the  consignor  may  seize  the  goods  before  they  come  to  the  hands 
of  the  consignee  or  his  assignees.  This  was  most  clearly  right;  but 
it  does  not  apply  to  the  present  case:  for  when  he  made  use  of  the 
word  "assignees,"  he  undoubtedly  meant  assignees  under  a  commis- 
sion of  bankrupt,  like  those  who  were  then  before  him,  and  not  per- 
sons to  whom  the  consignees  sold  the  goods.  For  in  that  case  it  is 
stated  that  no  part  of  the  price  of  the  goods  was  paid.  The  whole 
cause  turns  upon  this  point.     In  that  case  no  part  of  the  price  of 


Sec.  2)  STOPPAGE  IN  TRANSITU  471 

the  goods  was  paid,  and  therefore  the  original  owner  might  seize 
the  goods.  But  in  this  case  the  plaintiffs  had  paid  the  price  of  the 
goods,  or  were  under  acceptances  for  them,  which  is  the  same  thing; 
and  therefore  the  original  owner  could  not  seize  them  again.  But 
the  note  of  that  case  says.  Lord  Mansfield  added,  "and  this  was 
ruled  not  upon  principles  of  equity  only,  but  the  laws  of  property." 
Do  these  words  fairly  import  that  the  property  was  not  altered  by 
a  bill  of  lading,  or  by  the  indorsement  of  it?  That  the  liberty  of 
stopping  goods  in  transitu  is  originally  founded  on  principles  of 
equity,  and  that  it  has,  in  the  case  before  him,  been  adopted  by  the 
law,  and  that  it  does  affect  property,  are  all  true;  and  that  is  all 
that  the  words  mean;  not  that  the  property  did  not  pass  by  the  bill 
of  lading.  The  commercial  law  of  this  country  was  never  better 
understood,  or  more  correctly  administered  than  by  that  great  man. 
It  was  under  his  fostering  hand  that  the  trade  and  the  commercial 
law  of  this  country  grew  to  its  present  amazing  size :  and  when  we 
find  him  in  other  instances  adopting  the  language  and  opinion  of 
Lord  C.  J.  Holt,  and  saying,  that  since  the  cases  before  him  it  had 
always  been  held,  that  the  delivery  of  a  bill  of  lading  transferred 
the  property  at  law;  and  in  the  year  1767  deciding  that  very  point; 
it  does  seem  to  me  to  be  absolutely  impossible  to  make  a  doubt  of 
what  was  his  opinion  and  meaning.  All  his  determinations  on  the 
subject  are  uniform. 

Even  the  case  of  Savignac  v.  Cuff,  of  which  we  have  no  account, 
besides  the  loose  and  inaccurate  note  produced  at  the  bar  (cited  in  2 
Term  Rep.  66),  as  I  understand  it,  goes  upon  the  same  principle. 
The  note  states  that  the  counsel  for  the  plaintiff  relied  on  the  prop- 
erty passing  by  the  bill  of  lading ;  to  which  Lord  Mansfield  answered, 
the  plaintiff  has  lost  his  lien,  he  standing  in  the  place  of  the  con- 
signee. Lord  Mansfield  did  not  answer  mercantile  questions  so : 
which,  as  stated,  was  no  answer  to  the  question  made.  But  I  think 
■enough  appears  on  that  case  to  shew  the  grounds  of  the  decision, 
to  make  it  consistent  with  the  case  of  Wright  and  Campbell,  and 
to  prove  it  a  material  authority  for  the  plaintiffs  in  this  case.  I  col- 
lect from  it  that  the  plaintiff  had  notice  by  the  letter  of  advice  that 
Lingham  had  not  paid  for  the  goods;  and  if  so,  then  according  to 
the  case  of  Wright  v.  Campbell,  he  could  only  stand  in  Lingham's 
place.  But  the  necessity  of  recurring  to  the  question  of  notice 
strongly  proves  that  if  there  had  been  no  such  notice,  the  plaintiff, 
who  was  the  assignee  of  Lingham  the  consignee,  would  not  have 
stood  in  Lingham's  place,  and  the  consignor  could  not  have  seized 
the  goods  in  transitu :  but  that,  having  seized  them,  the  plaintiff 
would  have  been  entitled  to  recover  the  full  value  of  them  from  him. 
This  way  of  considering  it  makes  that  case  a  direct  authority  in  point 
for  the  plaintiff's. 

There  is  another  circumstance  in  that  case  material  for  considera- 
tion, because  it  shews  how  far  only  the  right  of  seizing  in  transitu 


472  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

extends  as  between  the  consignor  and  consignee.  The  plaintiff  in 
that  action  was  considered  as  the  consignee ;  the  defendant,  the  con- 
signor, had  not  .received  the  full  value  for  his  goods,  but  the  con- 
signee had  paid  il50.  on  account  of  them.  Upon  the  insolvency  of 
the  consignee  the  consignor  seized  the  goods  in  transitu,  but  that 
was  holden  not  to  be  justifiable,  and  therefore  there  was  a  verdict 
against  him.  That  was  an  action  of  trover,  which  could  not  have 
been  sustained  but  on  the  ground  that  the  property  was  vested  in 
the  consignee,  and  could  not  be  seized  in  transitu  as  against  him.  If 
the  legal  property  had  remained  in  the  consignor,  what  objection 
could  be  stated  in  a  court  of  law  to  the  consignor's  taking  his  own 
goods?  But  it  was  holden  that  he  could  not  seize  the  goods;  which 
could  only  be  on  the  ground  contended  for  by  Mr.  Wallace,  the  coun- 
sel for  the  plaintiff,  that  the  property  was  in  the  consignee.  But 
though  the  property  were  in  the  consignee,  yet,  as  I  stated  to  your 
Lordships  in  the  outset,  if  the  consignor  had  paid  to  the  consignee 
all  that  he  had  advanced  on  account  of  the  goods,  the  consignor 
would  have  had  a  right  to  the  possession  of  the  goods,  even  though 
they  had  got  into  the  hands  of  the  consignee ;  and  upon  paying  or 
tendering  that  money  and  demanding  the  goods  the  property  would 
have  revested  in  him,  and  he  might  have  maintained  trover  for  them. 
But  admitting  that  the  consignee  had  the  legal  property,  and  was 
therefore  entitled  to  a  verdict,  still  the  question  remained  what  dam- 
ages he  should  recover.  And  in  ascertaining  them  regard  was  had 
to  the  true  merits  of  the  case,  and  the  relative  situation  of  each 
party.  If  the  consignee  had  obtained  the  actual  possession  of  the 
goods  he  would  have  had  nO  other  equitable  claim  on  them  than  for 
il50.  He  was  entitled  to  no  more;  the  defendant  was  liable  to  pay 
no  more;   and  therefore  the  verdict  was  given  for  that  sum. 

This  case  proceeded  precisely  upon  the  same  principles  as  the  case 
of  Wiseman  v.  Vandeput ;  where,  though  it  was  determined  that 
the  legal  property  in  the  goods,  before  they  arrived,  was  in  the  con- 
signee, yet  the  Court  of  Chancery  held  that  the  consignee  should 
not  avail  himself  of  that  beyond  what  was  due  to  him.  But  for  what 
was  due,  the  Court  directed  an  account ;  and  if  any  thing  were  due 
from  the  Italians  to  the  Bonnells,  that  should  be  paid  the  plaintiff's. 
The  plaintiffs  in  this  cause  are  exactly  in  the  situation  of  the  plaintiff's 
in  that  case ;  for  they  have  the  legal  property  in  the  goods ;  and 
therefore  if  any  thing  be  due  to  them,  even  in  equity,  that  must  be 
paid  before  any  person  can  take  the  goods  from  them;  and  £520. 
was  due  to  them,  and  has  not  been  paid. 

After  these  authorities,  taking  into  consideration  also  that  there 
is  no  case  whatever  in  which  it  has  been  holden  that  goods  can  be 
stopped  in  transitu  after  they  have  been  sold  and  paid  for,  or  money 
advanced  upon  them  bona  fide,  and  without  notice,  I  do  not  conceive 
that  the  case  is  open  to  any  arguments  of  policy  or  convenience. 
But  if  it  should  be  thought  so,  I  beg  leave  to  say,  that  in  all  mer- 


Sec.  2)  STOPPAGE    IN    TRANSITU  473 

cantile  transactions  one  great  point  to  be  kept  uniformly  in  view  is 
to  make  the  circulation  and  negociation  of  property  as  quick,  as  easy, 
and  as  certain  as  possible.  If  this  judgment  stand,  no  man  will  be 
safe  either  in  buying,  or  in  lending  money  upon  goods  at  sea.  That 
species  of  property  will  be  locked  up ;  and  many  a  man,  who  could 
support  himself  with  honour  and  credit  if  he  could  dispose  of  such 
property  to  supply  a  present  occasion,  would  receive  a  check,  which 
industry,  caution,  or  attention  could  not  surmount.  If  the  goods  are 
in  all  cases  to  be  liable  to  the  original  owner  for  the  price,  what  is 
there  to  be  bought? 

There  is  nothing  but  the  chance  of  the  market,  and  that  the  buyer 
expects  as  his  profit  on  purchasing  the  goods,  without  paying  an  ex- 
tra price  for  it.  But  Turing  has  transferred  the  property  to  Free- 
man, in  order  that  he  might  transfer  it  again,  and  has  given  him 
credit  for  the  value  of  the  goods.  Freeman  having  transferred  the 
goods  again  for  value,  I  am  of  opinion  that  Turing  had  neither  prop- 
erty, lien,  or  a  right  to  seize  in  transitu.  The  great  advantage  whicl" 
this  country  possesses  over  most  if  not  all  other  parts  of  the  knowr 
world,  in  point  of  foreign  trade,  consists  in  the  extent  of  credit  given 
on  exports,  and  the  ready  advances  made  on  imports.  But  amidst 
all  these  indulgencies  the  wise  merchant  is  not  unmindful  of  his  true 
interests  and  the  security  of  his  capital. 

I  will  beg  leave  to  state,  in  as  few  words  as  possible,  what  is  a 
very  frequent  occurrence  in  the  city  of  London.  A  cargo  of  goods 
of  the  value  of  i2000.  is  consigned  to  a  merchant  in  London ;  and 
the  moment  they  are  shipped  the  merchant  abroad  draws  upon  his 
correspondent  here  to  the  value  of  that  cargo :  and  by  the  first  post 
or  ship  he  sends  him  advice,  and  incloses  the  bill  of  lading.  The  bills, 
in  most  cases,  arrive  before  the  cargo;  and  then  the  merchant  in 
London  must  resolve  what  part  he  will  take.  If  he  accept  the  bills 
he  becomes  absolutely  and  unconditionally  liable;  if  he  refuse  them| 
he  disgraces  his  correspondent,  and  loses  his  custom  directly.  Yet' 
to  engage  for  £2000.  without  any  security  from  the  drawer  is  a  bold 
measure.  The  goods  may  be  lost  at  sea ;  and  then  the  merchant 
here  is  left  to  recover  his  money  against  the  drawer  as  and  when 
he  may.  The  question  then  with  the  merchant  is,  how  can  I  secure 
myself  at  all  events?  The  answer  is,  I  will  insure,  and  then  if  the 
goods  come  safe  I  shall  be  repaid  out  of  them,  or  if  they  be  lost,  I 
shall  be  repaid  by  the  underwriters  on  the  policy.  But  this  cannot 
be  done  unless  the  property  vest  in  him  by  the  bill  of  lading:  for 
otherwise  his  policy  will  be  void  for  want  of  interest.  And  an  in- 
surance in  the  name  of  the  foreign  merchant  would  not  answer  the 
purpose.  This  is  the  case  of  the  merchant  who  is  wealthy,  and  has 
the  i2000.  in  his  banker's  hands,  which  he  can  part  with,  and  not 
find  any  inconvenience  in  so  doing. 

But-  there  is  another  case  to  be  considered,  viz.  Suppose  the  mer- 
chant here  has  not  got  the  £2000.  and  cannot  raise  it  before  he  has 


474  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

sold  the  goods  ?  the  same  consideraions  arise  in  his  mind  as  in  the  for- 
mer case,  with  this  additional  circumstance,  that  the  money  must 
be  procured  before  the  bills  become  due.  Then  the  question  is,  how 
can  that  be  done?  If  he  have  the  property  in  the  goods,  he  can  go 
to  market  with  the  bill  of  lading  and  the  policy,  as  was  done  in  Snee 
and  Prescott;  and  upon  that  idea  he  has  hitherto  had  no  difficulty 
in  doing  so.  But  if  he  have  not  the  property  nobody  will  buy  of  him, 
and  then  his  trade  is  undone. 

But  there  is  still  a  third  case  to  be  considered ;  for  even  the  wary 
and  opulent  merchant  often  wishes  to  sell  his  goods  whilst  they  are 
at  sea.  I  will  put  the  case  by  way  of  example,  that  barilla  is  shipped 
for  a  merchant  here  at  a  time  when  there  has  been  a  dearth  of  that 
commodity,  and  it  produces  a  profit  of  251.  per  cent.,  whereas  upon 
an  average  it  does  not  produce  above  12/.  The  merchant  has  ad- 
vices that  there  is  a  great  quantity  of  that  article  in  Spain  intended 
for  the  British  market,  and  when  that  arrives  the  market  will  be 
glutted,  and  the  commodity  much  reduced  in  value.  He  wishes  there- 
fore to  sell  it  immediately  whilst  it  is  at  sea,  and  before  it  arrives, 
and  the  profit  which  he  gets  by  that  is  fair  and  honourable;  but  he 
cannot  do  it  if  he  have  not  the  property  by  the  bill  of  lading.  Be- 
sides, a  quick  circulation,  is  the  life  and  soul  of  trade ;  and  if  the 
merchant  cannot  sell  with  safety  to  the  buyer,  that  must  necessarily 
be  retarded.  From  the  little  experience  which  I  acquired  on  this 
subject  at  Guildhall,  I  am  confident  that  if  the  goods  in  question  be 
retained  from  the  plaintiff  without  repaying  him  what  he  has  ad- 
vanced on  the  credit  of  thern,  it  will  be  mischievous  to  the  trade  and 
commerce  of  this  country ;  and  it  seems  to  me  that  not  only  commer- 
cial interest,  but  plain  justice  and  public  policy  forbid  it. 

To  sum  up  the  whole  in  very  few  words,  the  legal  property  was  in 
the  plaintiff :  the  right  of  seizing  in  transitu  is  founded  on  equity : 
no  case  in  equity  has  ever  suff'ered  a  man  to  seize  goods  in  opposition 
to  one  who  has  obtained  a  legal  title,  and  has  advanced  money  upon 
them ;  but  Lord  Hardwicke's  opinion  was  clearly  against  it :  and 
the  law,  where  it  adopts  the  reasoning  and  principle  of  a  court  of 
equity,  never  has  and  never  ought  to  exceed  the  bounds  of  equity 
itself.  I  offer  to  your  Lordships  as  my  humble  opinion,  that  the  evi- 
dence given  by  the  plaintiff",  and  confessed  by  the  demurrer,  is  suf- 
ficient in  law  to  maintain  the  action. 

A  venire  facias  de  novo  having  been  accordingly  awarded  by  the 
King's  Bench  a  special  verdict  was  found  upon  the  second  trial,  con- 
taining in  substance  the  same  facts  as  before,  with  this  addition,  that 
the  jury  found,  that  by  the  custom  of  merchants,  bills  of  lading  for 
the  delivery  of  goods  to  the  order  of  the  shipper  or  his  assigns,  are, 
after  the  shipment,  and  before  the  voyage  performed,  negotiable  and 
trans ferrable  by  the  shipper's  indorsement  and  delivery,  or  transmit- 
ting of  the  same  to  any  other  person ;  and  that  by  such  indorsement 
and  delivery  or  transmission  the  property  in  such  goods  is  transferred 


Sec.  2)  STOPPAGE    IN    TRANSITU  475 

to  such  other  person.  And  that  by  the  custom  of  merchants,  indorse- 
ments of  bills  of  lading  in  blank  may  be  filled  up  by  the  person  to 
whom  they  are  so  delivered  or  transmitted,  with  words  ordering  the 
delivery  of  the  goods  to  be  made  to  such  person ;  and  according  to  the 
practice  of  merchants,  the  same,  when  filled  up,  have  the  same  opera- 
tion and  effect  as  if  it  had  been  done  by  the  shipper.  On  this  special 
verdict,  the  Court  of  King's  Bench,  understanding  that  the  case  was  to 
be  carried  up  to  the  House  of  Lords,  declined  entering  into  a  discus- 
sion of  it,  merely  saying,  that  they  still  retained  the  opinion  delivered 
upon  the  former  case,  and  gave  judgment  for  the  plaintiffs. 


NEWHALL  et  al.  v.  CENTRAL  PAC.  R.  CO. 

(Supreme  Court  of  California,  1876.    51  Cal.  345,  21  Am.  Rep.  713.) 

Crocke^tt,  J.  "^  This  case  comes  up  on  the  findings,  and  there  is, 
therefore,  no  controversy  as  to  the  facts;  the  only  question  being, 
whether  the  plaintiffs  are  entitled  to  judgment  on  the   facts   found. 

The  facts  necessary  to  a  correct  understanding  of  the  only  question 
of  law  in  the  case  are,  that  a  mercantile  firm  in  New  York  sold  certain 
merchandise  on  credit  to  a  similar  firm  in  San  Francisco,  and"  shipped 
the  same  in  the  usual  course  of  business,  by  railway,  to  the  vendees  as 
consignees,  under  bills  of  lading  in  the  usual  form.  The  bills  of  lad- 
ing were  received  at  San  Francisco  by  the  consignees  before  the  goods 
arrived;  and  while  the  merchandise  was  in  transit,  in  the  custody  of 
the  defendant  as  a  common  carrier,  the  consignees  failed,  and  became 
insolvent,  and  thereupon  the  vendors  notified  the  defendant  in  writing 
that  they  stopped  the  goods  in  transitu ;  that  the  vendees  had  become 
insolvent,  and  the  goods  were  not  paid  for,  and  that  they  must  not  be 
delivered  to  the  consignees,  but  to  the  vendors.  The  plaintiffs  then 
were,  and  for  many  years  had  been,  auctioneers  and  commission  mer- 
chants, doing  business  in  San  Francisco,  and  had  been  in  the  habit  of 
receiving  from  the  consignees  bills  of  lading,  and  goods  under  them, 
for  sale  on  commission.  About  two  hours  after  the  notice  of  stoppage 
in  transitu  was  served  upon  the  defendant,  the  consignees  indorsed 
and  delivered  the  bills  of  lading  to  the  plaintiffs,  who,  on  the  faith 
thereof  and  of  the  goods  named  therein,  "advanced  a  sum  of  money  to 
the  consignees  in  the  usual  course  of  business ;"  and  the  sum  so  ad- 
vanced was  to  be  reimbursed  out  of  the  proceeds  of  the  goods,  which 
were  to  be  sold  at  auction  by  the  plaintiffs.  At  the  time  of  the  in- 
dorsement and  transfer  of  the  bills  of  lading  to  the  plaintiffs,  they  had 
no  notice  that  the  consignees  were  in  failing  circumstances,  or  had 
failed,  or  that  any  notice  of  stoppage  in  transitu  had  been  served  upon 
the  defendant.    While  the  goods  were  still  in  the  possession  of  the  de- 

7  Tlie  statement  of  facts  is  omitted. 


470  RIGHTS   OF    UNTAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

fendant  as  a  common  carrier,  the  plaintiffs,  as  holders,  exhibited  to  the 
defendant  the  bills  of  lading,  tendered  the  charges,  and  demanded  a 
delivery  of  the  goods,  which  was  refused,  and  the  action  is  to  recover 
their  value. 

The  question  involved  being  one  of  great  practical  importance,  it 
has  been  discussed  by  counsel  both  orally  and  in  printed  arguments, 
with  learning  and  ability.  But  after  the  most  careful  research,  they 
have  failed  to  call  to  our  attention  a  single  adjudicated  case  in  which 
the  precise  question  under  review  has  been  decided  or  discussed. 
There  are  numerous  decisions,  both  in  England  and  America,  to  the 
effect  that  where  goods  are  consigned  by  the  vendor  to  the  vendee,  un- 
der bills  of  lading  in  the  usual  form,  as  in  this  case,  an  attempt  by  the 
K^endor  to  stop  the  goods  in  transitu  will  be  unavailing  as  against  an 
jassignee  of  the  bill  of  lading,  who  took  it  in  good  faith,  for  a  valuable 
/consideration,  in  the  usual  course  of  business,  before  the  attempted 
stoppage.  The  leading  case  on  this  point  is  Lickbarrow  v.  ]\Iason  (2 
Term  R.  63),  the  authority  of  which  has  been  almost  universally  ac- 
quiesced in  by  the  courts  and  text-writers,  in  this  country  and  in  Eng- 
land. There  being  little  or  no  conflict  in  the  authorities  on  the  point 
adjudicated  in  that  case,  it  would  be  useless  to  recapitulate  them  here. 
But  it  is  important  to  ascertain  the  principles  which  underlie  these  de- 
cisions, that  we  may  determine  to  what  extent,  if  at  all,  they  are  appli- 
cable to  the  case  at  bar.  The  first,  and,  as  I  think,  the  controlling, 
point  determined  in  these  cases,  is,  that  by  the  bill  of  lading  the  legal 
title  to  the  goods  passes  to  the  vendee,  subject  only  to  the  lien  of  the 
vendor  for  the  unpaid  price  ^  which  lien  continues  only  so  long  as  the 
goods  are  in  transit,  and  can  be  enforced  only  on  condition  that  the 
vendee  is  or  becomes  insolvent  while  the  goods  are  in  transit. 

On  the  failure  of  each  of  these  conditions,  the  right  of  stoppage  is 
gone,  and  the  lien  ceases,  even  as  against  the  vendee.  But  it  is  fur- 
ther settled  by  these  adjudications,  that  if  the  bill  of  lading  is  assigned, 
and  the  legal  title  passes  to  a  bona  fide  purchaser  for  a  valuable  con- 
sideration before  the  right  of  stoppage  is  exercised,  the  lien  of  the 
vendor  ceases  as  against  the  assignee,  on  the  well-known  principle  that 
k  secret  trust  will  not  be  enforced  as  against  a  bona  fide  holder  for 
lvalue  of  the  legal  title.  In  such  a  case,  if  the  equities  of  the  vendor 
land  assignee  be  considered  equal  (and  this  is  certainly  the  light  most 
favorable  to  the  vendor  in  which  the  transaction  can  be  regarded),  the 
rule  applies  that  where  the  equities  are  equal  the  legal  title  will  pre- 
vail. But  in  such  a  case  it  would  be  difficult  to  maintain  that  the  equi- 
ties are  equal.  The  vendor  has  voluntarily  placed  in  the  hands  of  the 
vendee  a  muniment  of  title,  clothing  him  with  the  apparent  ownership 
of  the  goods ;  and  a  person  dealing  w'ith  him  in  the  usual  course  of 
business,  who  takes  an  assignment  for  a  valuable  consideration,  "with- 
out notice  of  such  circumstances  as  render  the  bill  of  lading  not  fairly 
and  honestly  assignable,"  has  a  superior  equity  to  that  of  the  vendor 


Sec.  2)  STOPPAGE  IN  TRANSITU  477 

asserting  a  recent  lien,  known,  perhaps,  only  to  himself  and  the  ven- 
dee.   Brewster  v.  Sime,  42  Cal.  139. 

These  being  the  conditions  which  determine  and  control  the  relative 
rights  of  the  vendor  and  assignee,  where  the  assignment  is  made  be 
fore  the  notice  of  stoppage  is  given,  precisely  the  same  principles,  inj 
my  opinion,  are  applicable  when  the  assignment  is  made  after  the  car 
rier  is  notified  by  the  vendor.  Notwithstanding  the  notice  to  the  car 
rier,  the  vendor's  lien  continues  to  be  only  a  secret  trust  as  to  a  person, 
who,  in  the  language  of  Mr.  Benjamin,  in  his  work  on  Sales,  section 
eight  hundred  and  sixty-six,  takes  an  assignment  of  a  bill  of  lading 
•'without  notice  of  such  circumstance  as  renders  the  bill  of  lading  not 
fairly  and  honestly  assignable."  The  law  provides  no  method  by  which 
third  persons  are  to  be  affected  with  constructive  notice  of  acts  tran- 
spiring between  the  vendor  and  the  carrier ;  and  in  dealing  with  the 
vendee,  whom  the  vendor  has  invested  with  the  legal  title  and  appar- 
ent ownership  of  the  goods,  a  stranger,  advancing  his  money  on  the 
faith  of  this  apparently  good  title,  is  not  bound,  at  his  peril,  to  ascer- 
tain whether,  possibly,  the  vendor  may  not  have  notified  a  carrier — it 
may  be  on  some  remote  portion  of  the  route — that  the  goods  are  stop- 
ped in  transitu.  If  a  person,  taking  an  assignment  of  a  bill  of  lading, 
is  to  encounter  these  risks,  and  can  take  the  assignment  with  safety 
only  after  he  has  inquired  of  the  vendor,  and  of  every  carrier  through 
whose  hands  the  goods  are  to  come,  whether  a  notice  of  stoppage  in 
transition  has  been  given,  it  is  quite  certain  that  prudent  persons  will 
cease  to  advance  money  on  such  securities,  and  a  very  important  class 
of  commercial  transactions  w'ill  be  practically  abrogated. 

In  my  opinion  the  judgment  should  be  afftrmed,  and  it  is  so  ordered. 

Mr.  Chief  Justice  WallaciJ  did  not  express  an  opinion. 


KEMP  V.  FALK. 

(House  of  Lords,  1882.     7  App.  Cas.  573.) 

In  March,  1878,  Kiell  bought  on  credit  from  Falk  a  cargo  of  salt, 
chartered  the  Carpathian  and  consigned  the  salt  (which  had  been  put 
on  board  by  Falk)  to  Wiseman,  Mitchell  &  Co.  of  Calcutta.  Through 
T.  Wiseman  &  Co.  of  Glasgow,  the  agents  of  Wiseman,  ^Mitchell  & 
Co.,  Kiell  obtained  an  advance  from  the  Bank  of  Scotland  upon  the 
security  of  the  bills  of  lading  which  Kiell  indorsed.  In  July  Wiseman, 
Mitchell  &  Co.  sold  the  cargo  "to  arrive."  On  the  20th  of  July  Kiell 
went  into  liquidation  and  Falk  on  the  27th  served  on  the  shipowners 
in  Liverpool  notice  to  stop  in  transitu.  The  ship  arrived  at  Calcutta 
on  the  29th  of  July ;  part  of  the  cargo  was  delivered  to  subpurchasers 
on  the  3d  of  August,  and  the  remainder,  after  notice  to  stop  in  transitu 
had  been  served  on  the  captain,  on  the  5th  of  August.  Wiseman, 
Mitchell  &  Co,  remitted  the  proceeds  of  the  subsales  to  the  Bank  of 


478  BIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

Scotland,  who  deducted  the  amount  of  their  advance  and  paid  the  bal- 
ance to  the  appellant,  Kiell's  trustee  in  bankruptcy.  Falk  having  ap- 
plied to  the  Court  of  Bankruptcy  to  order  the  trustee  to  pay  over  the 
balance,  which  was  less  than  the  amount  for  which  Falk  sold  to  Kiell, 
the  Registrar  sitting  as  Chief  Judge  refused  the  application.  On  ap- 
peal the  Court  of  Appeal  (James,  Baggallay,  and  Bramwell,  L.  JJ.) 
granted  it. 

Lord  Blackburn.  My  Lords,  I  perfectly  agree  in  the  result  that 
this  appeal  must  be  dismissed  with  costs.  Originally  in  this  case  there 
was  a  statement  of  facts  made  in  the  Court  of  Bankruptcy,  upon  which 
there  was  an  appeal  to  the  Appeal  Court;  and  on  that  statement  of 
facts  the  ingenuity  of  counsel  seems  to  have  led  the  Court  below  to 
draw  some  inferences,  which  induced  them,  whilst  giving  judgment, 
as  they  have  done,  in  favour  of  Mr.  Falk,  the  present  respondent,  to 
intimate  at  the  same  time  that  they  thought  the  case  raised  a  question 
which  had  been  raised  in  the  case  of  Ex  parte  Golding,  Davis  &  Co., 
13  Ch.  D.  628,  and  that  therefore  they  should  give  leave  to  appeal. 
When  the  case  came  here  the  first  time,  my  noble  and  learned  friend 
Lord  Penzance  thought  that  the  statement  of  facts  was  not  intelligible, 
and  that  it  was  desirable  that  it  should  be  sent  down  to  have  the  facts 
made  clear;  and  now  it  appears  that  the  original  statement  of  facts 
was  not  only  not  intelligible  but  also  not  quite  accurate;  and  we  have 
now  an  amended  and  supplementary  statement  of  facts,  shewing  what 
the  facts  of  the  case  really  were.  Taking  that  statement  it  seems  to 
me  that  the  case  is  perfectly  clear.  We  have  no  occasion  to  consider 
whether  the  case  of  Ex  parte  Golding,  Davis  &  Co.,  13  Ch.  D.  628, 
was  well  or  ill  decided,  because  no  point  relating  to  it  arises  here. 

It  appears  that  Mr.  Falk  of  Liverpool  had  sold  to  ]\Ir.  Kiell  a  quan- 
tity of  salt,  which  was  shipped  on  board  a  vessel  bound  for  Calcutta; 
that  Mr.  Kiell  accepted  a  draft  drawn  against  that  cargo;  that  bills 
of  lading  were  made  out,  which  were  signed  not  as  is  usual  by  the 
master  but  by  the  shipowner  himself,  and  that  Mr.  Kiell  got  those  bills 
of  lading.  Now  so  far  as  that  goes,  standing  there,  nothing  can  be 
more  thoroughly  established  than  the  law  upon  it.  Mr.  Falk  having 
delivered  the  goods  and  taken  a  bill  of  exchange  had  no  right  whatever 
to  meddle  w-ith  those  goods  further,  unless  before  the  end  of  the  tran- 
situs  (I  shall  say  a  word  presently  as  to  what  comes  at  the  end  of  the 
transitus),  Kiell  the  purchaser  became  insolvent  and  stopped  payment, 
and  then  if  Falk  had  stopped  the  goods  in  transitu  he  would  have  been 
revested  in  his  rights  as  an  unpaid  vendor  as  against  Kiell.  It  is  pret- 
ty well  settled  now  that  it  would  not  have  rescinded  the  contract.  But 
before  the  end  of  the  transitus  came,  his  right  to  stop  the  goods  in 
transitu  might  be  defeated  by  an  indorsement  upon  the  bill  of  lading 
to  a  person  who  gave  value. 

In  the  present  case  there  was  such  an  indorsement  and  transfer  of 
the  bill  of  lading,  but  it  was  only  an  indorsement  and  transfer  for  a 


Sec.  2)  STOPPAGE    IN    TRANSITU  479 

particular  and  limited  purpose.  It  appears  that  Mr.  Kiell  in  order  to 
obtain  an  advance  got  Messrs.  T.  Wiseman  &  Co.  of  Glasgow,  the 
correspondents  and  agents  of  Messrs.  Wiseman,  Mitchell,  Reid  &  Co. 
of  Calcutta,  to  make  an  advance  in  his  favour  by  drawing  a  bill  of  ex- 
change upon  him ;  and  to  secure  the  payment  of  that  bill  of  exchange 
the  bill  of  lading  was  indorsed,  and  the  Bank  of  Scotland  who  dis- 
counted or  took  that  bill,  became  holders  of  the  bill  of  lading  for  the 
purpose  of  protecting  themselves.  It  was  clearly  a  transfer  for  value 
to  the  Bank  of  Scotland,  and  as  such,  so  far  as  that  went,  it  defeated 
the  right  of  the  stoppage  in  transitu  at  law.  But  the  unpaid  vendor's 
right,  except  so  far  as  the  interest  had  passed  by  the  pledging  of  the 
bill  of  lading  to  the  pledgee,  or  the  mortgagee,  whichever  it  was,  en- 
abled the  unpaid  vendor  in  equity  to  stop  in  transitu  everything  which 
was  not  covered  by  that  pledge.  That  was  settled  and  has  been  con- 
sidered law,  or  rather  equity,  ever  since  the  case  of  In  re  Westzinthus, 
5  B.  &  Ad.  817,  .and  has  been  affirmed  in  Spalding  v.  Ruding,  6  Beav. 
376,  12  L.  J.  (Ch.)  503 ;  and  I  have  no  doubt  it  is  very  good  law  upon 
that  point. 

Here  therefore  the  stoppage  by  Falk  as  unpaid  vendor  would  revest 
in  him  his  lien  except  so  far  as  concerned  the  Bank  of  Scotland,  un- 
less something  else  had  happened.  Now  what  has  happened?  The 
argument  of  Mr.  Bompas  was  this :  First  of  all  it  appears  that  Messrs. 
Wiseman,  Mitchell,  Reid  &  Co.,  who  were  the  persons  to  whom  the 
goods  were  consigned  (I  do  not  understand  whether  they  were  pur- 
chasers, or  merely  agents  for  Kiell  &  Co.)  sent  over  to  their  corre- 
spondents T.  Wiseman  &  Co.  of  Glasgow  a  sale  note,  and  then  they 
forwarded  it  to^  Kiell  &  Co.  in  this  letter :  "Dear  Sirs — We  enclose 
sale  note  of  your  cargo  of  salt  ex  Carpathian  to  arrive"  and  so  on — 
the  rest  of  the  letter  does  not  matter.  So  that  at  that  time  it  appears 
that  Messrs.  Wiseman,  Mitchell  &  Co.  had  entered  into  a  contract  at 
Calcutta  for  a  sale  of  the  goods  "to  arrive."  The  date  of  that  letter 
was  the  17th  of  July,  a  fortnight  or  so  before  the  ship  actually  did 
arrive  at  Calcutta.  That,  it  was  argued,  put  an  end  to  the  vendor's 
right  to  stop  the  goods  in  transitu,  and  pro  tanto  the  equitable  right  to 
stop  them  in  transitu  which  remained  in  Mr.  Falk.  I  have  endeav- 
oured to  understand  on  what  ground  it  is  supposed  to  put  an  end  to  it. 
No  sale,  even  if  the  sale  had  actually  been  made  with  payment,  would, 
put  an  end  to  the  right  of  stoppage  in  transitu  unless  there  were  an 
indorsement  of  the  bill  of  lading.  Why  any  agreement  to  sell,  unless 
it  was  made  in  such  a  way  as  to  pass  the  right  of  property  in  the  goods 
sold,  should  be  supposed  to  put  an  end  to  the  equitable  right  to  stop 
them  in  transitu  I  cannot  understand.  I  am  quite  clear  that  it  does 
not. 

The  next  thing  which  was  attempted  to  be  argued  was  this.  The 
Bank  of  Scotland,  the  holders  of  the  bill  of  lading  at  Glasgow,  for- 
warded the  bill  of  lading  in  due  course  to  their  agents  at  Calcutta; 


480  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

and  it  is  surmised  that  their  agents  at  Calcutta  must  have  been  some 
persons  different  from  IMessrs.  \\'iseman,  Mitchell  &  Co.  I  infer  that 
Messrs.  Wiseman,  ^Mitchell  &  Co.  were  the  people  who  acted  as  their 
agents  in  this  transaction,  but  I  do  not  think  it  matters  whether  they 
were  or  not.  The  Bank  of  Scotland  sent  the  bill  of  lading  to  their 
agents,  whether  they  were  Messrs.  Wiseman,  Mitchell  &  Co.  or  any 
one  else.  Those  agents  received  that  bill  of  lading  well  knowing  (or 
at  all  events  they  ought  to  have  known)  that  the  Bank  of  Scotland  had 
by  virtue  of  this  bill  of  lading  a  hold  over  the  goods.  They  were  en- 
titled to  see  that  the  goods  were  not  sold  or  disposed  of  in  any  way 
prejudicial  to  their  lien,  and,  if  they  were  sold,  that  the  money,  or 
enough  of  it  to  repay  the  Bank  of  Scotland  and  secure  them,  should 
pass  through  their  hands  or  the  hands  of  their  agents ;  and  I  see  noth- 
ing that  happened  afterwards  which  shews  that  they  acted  otherwise 
than  in  strict  conformity  with  the  duty  thus  cast  upon  them.  It  was 
argued  that  inasmuch  as  Messrs.  Wiseman,  ^Mitchell  &  Co.  had  acted 
for  Kiell  &  Co.  in  selling  the  goods,  taking  a  del  credere  commission 
to  secure  that  the  people  to  whom  they  sold  should  pay  the  price, 
therefore  they  were  persons  who  were  entitled  to  have  the  bill  of  lad- 
ing endorsed  to  them  as  a  security.  I  am  utterly  unable  to  understand 
that  argmuent,  it  is  clear  to  me  that  they  were  not  so  entitled. 

The  next  thing  which  was  said  was  this.  There  was  a  little  confu- 
sion in  the  statement  here,  but  it  is  now  said  upon  the  amended  state- 
ment of  facts,  that  ]\Iessrs.  Wiseman,  Mitchell  &  Co.,  who  I  cannot 
but  think  were  the  persons  employed  by  the  Bank  of  Scotland  as  their 
agents,  did  at  some  time  (I  do  not  exactly  know  when)  indorse  the  bill 
of  lading  and  shew  it  to  the  captain.  I  do  not  think  that  that  comes 
to  more  than  this,  that  they  gave  the  captain  complete  notice,  when  he 
arrived  at  Calcutta,  "We  are  the  persons  who  have  the  legal  right  to 
the  delivery  of  these  goods,  for  we  have  the  bill  of  lading,  holding  it 
under  the  Bank  of  Scotland,  and  consequently  we  are  the  persons  en- 
titled to  the  goods.  You  can  deliver  only  to  us  without  being  responsi- 
ble to  us ;  if  you  deliver  to  us  or  with  our  sanction  you  will  not  be  re- 
sponsible to  us."    I  can  put  no  other  meaning  upon  it. 

Then  it  was  argued  that  this  amounts  to  a  delivery  of  the  whole 
cargo  by  the  shipowner  to  Messrs.  Wiseman,  Mitchell  &  Co.,  who 
from  that  time  forward  would  be  holders  of  the  goods ;  the  shipowner 
in  whose  physical  possession,  in  the  hold  of  whose  vessel,  the  goods 
lay,  being  changed  from  holding  the  goods  as  shipowner,  not  having 
delivered  the  goods,  into  a  warehouseman  who  was  very  inconvenient- 
ly holding  those  goods  in  his  ship  as  a  warehouse.  I  think  that  that  is 
an  arrangement  which  might  be  made  although  it  is  not  a  very  con- 
venient one.  The  freight  was  not  paid ;  but  I  think  it  is  possible  to 
make  an  arrangement  by  which,  though  the  freight  is  not  paid,  the 
shipowner  changes  himself  completely  into  a  warehouseman  instead 
of  being  a  carrier  or  a  shipowner;    he  alters  his  responsibilities  alto- 


Sec.  2)  STOPPAGE    IN    TRANSITU  481 

gather ;  and  yet  by  arrangement  or  agreement  retains  a  lien  over  the 
goods  until  the  freight  is  paid.  I  think  such  a  contract  might  be  made. 
But  when  one  is  asked  to  say  that  such  a  contract  was  made,  the  non- 
payment of  the  freight  is  a  very  important  element  leading  one  to  say 
that  no  such  contract  was  made  at  all.  In  this  case  I  cannot  help 
thinking  that  no  such  contract  was  made,  and  there  is  no  reason  why 
we  should  hold  that  it  was.  The  shipowner  acted  in  the  same  way  as 
if  it  had  not  been  made  and  in  no  other  way. 

Then  comes  an  argument  which  I  really  think  is  not  tenable,  and  I 
should  hardly  mention  it  if  it  were  not  for  the  great  importance  of 
everything  relating  to  the  Factors  Act  and  of  every  question  touching 
it  in  the  commercial  world.  It  was  argued  that  the  recent  statute  40 
&  41  Vict.  c.  39,  §  5,  which  says  that  the  transfer  of  a  delivery  order 
or  any  other  document  of  title  shall  put  an  end  to  an  unpaid  vendor's 
right  to  countermand  that  delivery  order  and  to  keep  the  goods,  oper- 
ates just  to  the  same  extent  and  under  the  same  circumstances  as  in 
the  case  of  a  bill  of  lading  for  goods  at  sea.  In  order  to  make  out 
that  proposition  reliance  was  placed  upon  this  fact,  that  Alessrs.  Wise- 
man, Mitchell  &  Co.,  who  were  holders  of  the  bill  of  lading,  as  I  have 
already  said,  for  the  Bank  of  Scotland,  wrote  to  the  captain  of  the 
ship  saying,  "In  order  to  save  trouble  we  will  not  sign  delivery  orders 
for  salt,  but  have  written  our  sircar  on  board  the  above  vessel  to  de- 
liver salt  to  those  men  who  produce  cash  receipts  from  our  cashiers;" 
and  by  some  strange  process  of  reasoning  it  was  said  that  the  man 
who  brought  and  shewed  to  the  sircar  of  Messrs.  Wiseman,  Mitchell 
&  Co.  a  receipt  for  a  sum  of  money  paid  to  their  cashier  for  the  salt, 
was  the  holder  of  a  document  of  title  for  the  salt  in  such  a  way  that 
the  indorsement  of  it  could  put  an  end  to  the  right  of  stoppage  in 
transitu  by  Mr.  Falk.  Now  in  the  first  place  the  statute  in  question 
was  never  meant  to  have  that  effect.  In  the  next  place  it  is  an  abuse 
of  the  language  to  call  such  a  receipt  as  this  a  document  of  title  in  any 
sliape. 

Then  the  last  and  desperate  attempt  was  to  say  that  the  stoppage 
in  transitu  was  not  until  the  5th  of  August.  I  see  that  Lord  Bramwell 
takes  a  different  view  of  the  law  from  what  I  had  always  understood 
it  to  be.  Ex  parte  Falk,  14  Ch.  D.  455.  I  had  always  myself  under- 
stood that  the  law  was  that  when  you  became  aware  that  a  man,  to 
whom  you  had  sold  goods  which  had  been  shipped,  had  become  insol- 
vent, your  best  way,  or  at  least  a  very  good  way,  of  stopping  them 
in  transitu  was  to  give  notice  to  the  shipowner  in  order  that  he  might 
send  it  on.  He  knew  where  his  master  was  likely  to  be,  and  he  might 
send  it  on ;  and  I  have  always  been  under  the  belief  that  although  such 
a  notice,  if  sent,  cast  upon  the  shipowner  who  received  it  an  obligation 
to  send  it  on  with  reasonable  dili';jence,  yet  if,  though  he  used  reason- 
able diligence,  somehow  or  other  the  goods  were  delivered  before  it 
WooDw.  Sales — 31 


482  RIGHTS   OF    UNPAID    SELLER   AGAINST  THE   GOODS  (Cll.  5 

reached,  he  would  not  be  responsible.  I  have  always  thought  that  a 
stoppage,  if  effected  thus,  was  a  sufficient  stoppage  in  transitu ;  I  have 
always  thought  that  when  the  shipowner,  having  received  such  a  no- 
tice, used  reasonable  diligence  and  sent  the  notice  on,  and  it  arrived 
before  the  goods  were  delivered,  that  was  a  perfect  stoppage  in  tran- 
situ. Consequently  I  think  that  when  notice  was  given  to  the  ship- 
owners (and  although  they  had  signed  the  bill  of  lading  instead  of  the 
master  signing  it,  I  do  not  think  that  that  makes  any  dift'erence;  I 
only  mention  it  to  say  that  it  makes  none)  they  were  under  an  obliga- 
tion to  forward  it  with  reasonable  diligence,  if  they  could,  to  the 
master. 

What  the  shipowners  did  was  this:  On  the  31st  of  July  they  sent 
a  telegram  (they  waited  two  days,  and  they  might  have  got  into  a 
scrape  by  that  means),  but  they  did  send  this  telegram  "Charterers 
Carpathian  failed,  unless  bill  of  lading  held  for  value,  don't  deliver." 
That  was,  as  it  strikes  me,  a  sending  forward  of  the  notice  to  stop  the 
goods  in  4:ransitu :  it  was  tantamount  to  saying,  "We  send  to  our  cap- 
tain the  notice  we  have  formally  received  ourselves ;"  and  consequent- 
ly I  should  say  that  the  stoppage  in  transitu  was  complete  on  the  31st 
of  July.  But  it  is  not  necessary  to  decide  that  point,  for  it  is  clear 
enough  that  the  goods  were  not  then  delivered,  and  nothing  was  done 
which  could  be  called  a  delivery  of  the  whole  or  any  part  of  them  un- 
til the  3d  of  August,  when  a  person  brings  one  of  these  receipts  for, 
I  think  1000  maunds  of  salt,  or  some  small  quantity  of  salt,  and  gets 
it  delivered. 

Then  it  is  said  that  the  delivery  of  a  part  is  a  delivery  of  the  whole. 
It  may  be  a  delivery  of  the  whole.  In  agreeing  for  the  delivery  of 
goods  with  a  person  you  are  not  bound  to  take  an  actual  corporeal 
delivery  of  the  whole  in  order  to  constitute  such  a  delivery,  and  it  may 
very  well  be  that  the  delivery  of  a  part  of  the  goods  is  sufficient  to  af- 
ford strong  evidence,  that  it  is  intended  as  a  delivery  of  the  whole. 
If  both  parties  intend  it  as  a  delivery  of  the  whole,  then  it  is  a  deliv- 
ery of  the  whole;  but  if  either  of  the  parties  does  not  intend  it  as  a 
delivery  of  the  whole,,  if  either  of  them  dissents,  then  it  is  not  a  deliv- 
ery of  the  whole.  I  had  always  understood  the  law  upon  that  point  to 
have  been  an  agreed  law,  which  nobody  ever  doubted  since  an  elab- 
orate judgment  in  Dixon  v.  Yates,  5  B.  &  Ad.  313,  339,  by  Lord  Wen- 
sleydale,  who  was  then  Parke,  J.  The  rule  I  had  always  understood, 
from  that  time  down  to  the  present,  to  be  that  the  delivery  of  a  part 
may  be  a  delivery  of  the  whole  if  it  is  so  intended,  but  that  it  is  not 
such  a  delivery  unless  it  is  so  intended,  and  I  rather  think  that  the 
onus  is  upon  those  who  say  that  it  was  so  intended.  Therefore  the  de- 
livery of  this  particular  parcel  of  salt  was  not  a  delivery  of  anything 
else. 

What  we  are  now  dealing  with  is  the  delivery  of  the  salt  which  was 
delivered  after  the  5th  of  August,  and  which  was  quite  sufficient  to 


Sec.  2)  STOPPAGE    IN    TRANSITU  483 

dispose  of  the  whole  sum  now  in  dispute.  We  do  not  n'eed  to  inquire 
what  were  the  rights  in  any  particular  parcel  of  salt  delivered  on  the 
3d  of  August.  Supposing  that  those  were  misdeliveries  no  harm 
would  happen,  as  quite  enough  remained  to  pay  the  Bank  of  Scotland 
and  no  dispute  would  arise  about  that;  there  is  no  complaint  by  any- 
body respecting  it.  The  present  question  is  with  regard  to  the  stop- 
page in  transitu  of  the  residue  after  an  undoubted  notice  of  stoppage 
in  transitu  was  served  upon  the  5th  of  August.  Is  that  subject  to  the 
rule  that  although  the  whole  of  the  cargo  could  not  be  stopped  because 
the  bill  of  lading  had  been  transferred  to  the  Bank  of  Scotland,  the 
interest  which  still  remained  in  Kiell  or  in  Kiell's  assigns  to  whom  he 
had  sold  it,  or  in  anybody  else  except  those  who  had  become  trans- 
ferees of  the  bill  of  lading,  might  be  stopped  and  might  become  vested 
in  Falk  the  original  vendor? 

I  think  there  is  no  reason  why  it  should  not ;   and  that  being  so,  the 
judgment  of  the  Court  below  is  right  and  ought  to  be  afiirmed.* 


BLACKMAN  et  al.  v.  PIERCE. 
(Supreme  Court  of  California,  1S63.     23  Cal.  508.) 

After  the  sale  of  the  goods  by  Blackman  &  Co.,  at  San  Fran- 
cisco, to  McDaniel,  Blackman  &  Co.  shipped  the  same  to  McDan- 
iel,  the  vendee  at  Trinity  Center.  The  bills  of  lading  were  made 
out  in  the  name  of  the  vendee.  The  goods,  in  ordinary  course  of 
transportation,  arrived  at  the  head  of  steamboat  navigation,  at  Red 
Bluff,  where  they  were  placed  in  the  hands  of  Pierce,  Church  & 
Co.,  warehousemen,  who  had  orders  from  the  vendee  to  forward 
them  to  him.  Defendants,  Pierce,  Church  &  Co.,  defended  on  the 
ground  of  right  of  property,  in  the  vendee,  McDaniel.  The  Sheriff 
Johns,  justified  under  the  attachment  issued  in  Fuller  v.  McDaniel. 
The  other  facts  are  stated  in  the  opinion  of  the  Court. 

Crocker,  J.,  delivered  the  opinion  of  the  Court — Norton,  J.,  con- 
curring. 

This  is  an  action  brought  against  Pierce,  Church  &  Co.,  ware- 
housemen at  Red  Bluff,  and  Johns,  the  Sheriff  of  Tehama  County, 
to  recover  the  value  of  a  lot  of  goods  sold  by  the  plaintiffs,  mer- 
chants in  San  Francisco,  to  one  McDaniel,  of  Trinity  Center,  Trin- 
ity County;  and  which  they  claim  by  the  right  of  stoppage  in  tran- 
situ, the  purchaser  having  become  insolvent  after  the  sale  of  the 
goods.  It  appears  that  the  goods  were  duly  marked  to  McDaniel, 
care  of  Pierce,  Church  &  Co.,  Red  Bluff;  that  the  plaintiffs  shipped 
them  on,  a  steamer  at  San  Francisco,  and  they  duly  arrived  at  Red 
Blufi^,  the  point  of  transshipment  from  the  river  steamer  to  wagons, 

8  Coucurring  opinions   were  delivered  by   Lords   Selbobne,   Watson,    and 
Fitzgerald. 


484  EIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

to  be  transported  to  their  final  destination ;  that  Pierce,  Church  & 
Co.  put  them  in  their  warehouse,  advised  ]\IcDaniel  of  their  arrival, 
and  he  wrote  them  that  he  would  send  a  team  after  them;  that  while 
they  were  thus  in  the  warehouse  at  Red  Bluff  an  attachment  was 
levied  upon  them  by  the  Sheriff,  issued  in  an  action  brought  by  one 
Fuller  against  McDaniel ;  that  after  the  purchase  of  the  goods 
McDaniel  became  insolvent,  and  the  price  remained  unpaid ;  that 
after  the  levy  the  plaintiffs,  by  their  agent,  gave  notice  to  the  ware- 
housemen and  the  Sheriff  that  McDaniel  had  become  insolvent ; 
that  the  goods  had  been  sold  to  him  by  them ;  that  the  price  was 
unpaid,  and  that  they  claimed  the  right  of  stoppage  in  transitu,  and 
demanded  the  goods  of  them,  and  they  refused  to  deliver  them. 

The  right  of  a  vendor  who  has  sold  goods  on  credit,  when  the 
vendee  is  insolvent,  to  stop  and  take  them  into  his  possession,  at 
any  time  before  their  arrival  at  the  place  of  destination,  and  going 
into  the  actual  or  constructive  possession  of  the  purchaser,  is  well 
established.  Depositing  them  at  an  intermediate  point,  with  an  agent 
of  the  purchaser  for  the  purpose  of  being  forwarded,  does  not 
terminate  the  transitus.  Markwald  v.  His  Creditors,  7  Cal.  213. 
It  is  clear,  therefore,  that  the  mere  fact  that  the  goods  had  come 
into  the  possession  of  Pierce,  Church  &  Co.,  to  be  forwarded  to 
the  purchaser,  did  not  terminate  the  transitus  or  divest  the  plain- 
tiffs of  their  right  of  stoppage  in  transitu. 

This  right  of  stoppage  in  transitu  is  paramount  to  any  lien  on 
the  goods  claimed  by  third  persons  against  the  purchaser.  Thus  it 
may  be  exercised  to  defeat  an  attachment  or  execution  levied  upon 
the  goods  by  a  creditor  of  the  vendee ;  for  the  lien  acquired  by  the 
levy  operates  only  upon  the  interest  of  the  debtor,  but  cannot  defeat 
the  paramount  right  of  a  stranger.  Hilliard  on  Sales,  217.  The 
Court  found  that  the  warehousemen  stated  to  plaintiffs'  agent,  at 
the  time  of  the  demand,  that  they  had  no  charges  upon  the  goods. 
This  was  stated  in  reply  to  a  question  of  the  agent,  who  told  them 
he  was  ready  to  pay  their  charges  if  any  they  had.  By  this,  the  ware- 
housemen waived  their  lien  for  charges,  if  thcv  had  any.  Everett 
V.  Saltus.  15  A\'end.  (N.  Y.)  474;  Eyerett  v.  Coffin,  6  Wend.  (N.  Y.) 
608,  22  Am.  Dec.  551;  Saltus  v.  Everett,  20  Wend.  (N.  Y.)  268,  32 
Am.  Dec.   541. 

The  judgment  is  affirmed. 


BERNDTSON  v.  STRANG. 

(In  Chancery,  1SG7.     L.  R.  Eq.  481.) 

This  was  a  suit  for  the  purpose  of  estaljlishing  the  right  of  the 
Plaintiff",  by  virtue  of  the  exercise  of  his  right  of  stoppage  in  transitu, 
to  a  charge  in  equity  upon  the  proceeds  of  certain  timber  sold  by 
him  to  a  firm  in  London,  of  whom  the  Defendants  were  the  assignees 
under  a  deed  for  the  benefit  of  creditors. 


Sec.  2)  STOPPAGE  IN  TRANSITU  485 

The  facts,  which  were  not  in  dispute,  were  thus  stated  upon  the 
bill: 

The  Plaintiff,  who  is  a  timber  merchant  of  Gefle,  in  Sweden, 
through  his  Paris  agent,  Charles  Von  Kock,  entered  into  a  contract 
in  February,  1863,  for  the  sale  to  Messrs.  Langton  &  Robinson,  a 
London  firm,  of  a  quantity  of  timber.  The  contract,  which  was 
reduced  into  writing,  and  signed  by  Messrs.  Langton  &  Robinson, 
after  stating  the  quantities  of  timber  and  the  prices,  proceeded  thus : 

"And  the  said  prices,  franco  on  bord,  payable  by  buyer's  accept- 
ance of  seller's  drafts  at  six  months  from  date  of  bills  of  lading. 
Shipment  to  London.  Sellers  to  provide  ships  to  a  freight  not  ex- 
ceeding 53s.  in  full,  per  Petersburger  standard,  with  two  or  three 
guineas  of  gratification  per  100  Petersb.  stand,  in  case  of  need. 
If  ships  cannot  be  chartered  within  this  limit  the  contract  to  be 
void." 

It  was  subsequently  agreed  that,  instead  of  Berndtson  providing 
a  ship  for  conveyance  of  the  timber,  Langton  &  Robinson  should 
themselves  charter  a  vessel  to  convey  the  timber  from  Gefle  to  Lon- 
don. 

Messrs.  Langton  &  Robinson  accordingly  chartered  a  ship,  the 
Maastrom,  which  proceeded  to  Gefle,  and  on  the  22nd  of  October, 
1863,  Berndtson  shipped  the  timber  on  board  of  her.  The  price  of 
the  timber  amounted  to  £1589.  12s.  6d.,  and  an  advance  of  £153. 
8s.  2d.  was  made  by  Berndtson  to  the  captain  of  the  ship  on  ac- 
count of  the  freight.  These  sums,  together  with  three  months'  in- 
terest at  5  per  cent,  on  the  advance,  amounted  to  £1744.  19s.,  and 
accordingly,  in  pursuance  of  the  contract,  Berndtson,  on  the  22nd 
of  October,  1863,  drew  a  bill  of  exchange  of  that  date  for  this 
amount  upon  Langton  &  Robinson,  payable  six  months  after  date. 
At  the  same  time,  in  order,  as  the  bill  alleged,  to  preserve  his  con- 
trol over  such  timber,  Berndtson  caused  the  bill  of  lading  to  be 
drawn  in  his  name  as  shipper  of  the  timber,  and  the  same  was 
thereby  made  deliverable  toi  the  order  or  assigns  of  Berndtson. 
[The  bill  of  lading  is  here  set  out  verbatim.] 

Berndtson  indorsed  this  bill  of  lading  in  blank,  and  caused  it 
to  be  handed  over  to  Langton  &  Robinson,  in  exchange  for  their  ac- 
ceptance of  the  bill  of  exchange  for  £1744.  19s.  On  receipt  of  the 
bill  of  lading  Messrs.  Langton  &  Robinson  deposited  it,  together 
with  a  policy  of  insurance  of  the  cargo  of  timber  and  other  securi- 
ties, with  Messrs.  Churchill  &  Sim,  as  a  security  for  repayment  of 
moneys  due  to  them  from  Langton  &  Robinson. 

The  Maastrom,  with  the  timber  on  board,  sailed  for  London,  but 
met  with  disasters  on  her  voyage,  got  stranded,  and  on  the  16th  of 
November,  1863,  was  forced  in  distress  to  put  into  the  port  of  Copen- 
hagen, where  she  remained  for  some  months.  On  the  16th  of  Feb- 
ruary, 1864,  Langton  &  Co.  suspended  payment,  and  subsequently, 
on  the  9th  of  September,  1864,  they  executed  a  deed  of  assignment 


486  RIGHTS   OF    UNPAID    SKLLER    AGAINST   TUE   GOODS  (Ch.  5 

to  the  Defendants,  Strang,  Sieveking,  and  Pack,  as  trustees  for  the 
benefit  of  their  creditors.  While  the  Maastrom  was  still  lying  in  the 
port  of  Copenhagen,  Berndtson  caused  the  captain  to  be  served  with 
a  notice,  dated  the  24th  of  March,  1864,  to  stop  the  timber  in  tran- 
situ. 

On  the  26th  of  April,  1864,  the  ]\Iaastrom  arrived  in  the  Thames, 
whereupon  a  second  notice  of  stoppage  in  transitu  was  served  on 
board  the  ship  and  also  on  the  shipbrokers,  and  on  Messrs.  Churchill 
&  Sim. 

The  timber  was  taken  possession  of  by  Churchill  &  Sim  as  mort- 
gagees, and  a  sum  of  £1276.  15s.  6d.  was  produced  by  the  sale  of 
it.  The  proceeds  of  the  timber,  with  the  moneys  received  under  the 
policy,  amounting  in  all  to  £1570.,  had  been  paid  into  Court  by 
Messrs.  Churchill  &  Sim,  who  had  been  satisfied  out  of  their  other 
securities. 

The  bill  of  exchange  for  £1744.  19s.  was  dishonoured  at  ma- 
turity. 

The  proceeds  of  the  timber  having  been  claimed  by  the  trustees 
of  the  creditors'  deed  executed  by  Langton  &  Robinson,  this  bill 
was  filed  by  Berndtson,  charging  that,  by  the  exercise  of  his  right 
of  stopping  the  timber  in  transitu,  he  was  entitled  in  equity  to  a 
valid  and  subsisting  charge  for  the  money  due  in  respect  of  the 
price   of  the  timber,  and  praying  relief  upon  this   footing. 

A  dividend  of  5s.  in  the  pound  on  the  whole  amount  of  his  claim 
on  the  estate  had  been  paid  to  the  Plaintiff  by  the  trustees  of  the 
creditors'    deed    without    prejudice. 

Sir  W.  Page  Wood,  V.  C.  The  question  in  this  case  is,  whether 
the  Plaintiff  is  entitled  to  such  a  declaration  as  was  made  in  Spald- 
ing V.  Ruding,  6  Beav.  376,  of  his  equitable  right  of  stoppage  in 
transitu  over  certain  timber  sold  by  him,  and  for  the  price  of  which 
bills  of  exchange  were  drawn,  which  were  unpaid  at  the  time  the 
consignees  became  insolvent ;  the  question  being  whether,  under  all 
the  circumstances  of  the  case,  the  consignees  having  simply  mort- 
gaged the  bills  of  lading,  which  brings  the  case  so  far  within  Spald- 
ing V.  Ruding,  the  plaintiff'  is  entitled  to  the  surplus  assets  as  against 
the  Defendants,  who  are  the  representatives,  under  a  deed  of  com- 
position, of  the  original  consignees. 

Spalding  v.  Ruding  was,  I  think,  the  first  case  in  this  Court  in 
which  this  right  was  asserted  as  against  property  which  had  so  far 
passed  into  the  hands  of  the  consignee  that  he  was  enabled  by  mort- 
gage of  the  bills  of  lading  to  pass  the  interest  in  the  goods  to  the 
extent  of  that  mortgage;  and  there  the  right  of  stoppage  in  transitu 
was  upheld  as  against  the  surplus. 

The  case,  which  was  originally  decided  by  Lord  Langdale.  and 
affirmed  by  Lord  Lyndhurst,  15  L.  J.  (Ch.)  374,®  was  no  doubt    in 

»  Lord  Lyxdiiurst's  judgment  was  as  follows: 

"The  Plaiutiffs,  as  the  shippers  of  the  goods  in  question,  would  have  had  a 


Sec.  2)  STOPPAGE    IN    TRANSITU  487 

some  degree,  an  extension  of  what  was  supposed  to  be  the  right  of 
the  consignor.  In  some  of  the  cases  there  were  dicta  which  seemed 
to  shew  that  by  the  indorsement  of  the  bill  of  lading  in  such  a  man- 
ner as  to  admit  of  a  dealing  with  it,  and  by  actual  dealing  with,  or 
actual  negotiation  of  such  bill  of  lading  to  a  bona  fide  transferee,  the 
vendor's  right  to  stop  in  transitu  would  be  defeated.  That  was  the 
great  ground  of  argument  in  Spalding  v.  Ruding,  6  Beav.  376,  and 
I  mention  the  case  as  shewing  the  extent  to  which  the  right  has 
been  upheld,  and  that  it  is  a  right  entirely  distinguished  from  the 
right  of  property  in  the  goods. 

The  Plaintiff  in  this  case  sold  to  Alessrs.  Langton,  who  have  be- 
come insolvent,  certain  timber  under  a  contract  of  sale,  specifying 
the  price,  "free  on  board,  payable  by  buyer's  acceptance  of  seller's 
drafts  at  six  months  from  date  of  bills  of  lading.  Shipment  to 
London."     It  was  also  provided  that  the  sellers  were  to  provide  ships. 

A  good  deal  was  said  about  these  words  "free  on  board,"  but 
as  regards  the  original  contract  it  would  be  plain  enough  that  there 
was  no  intention  that  the  goods  should  be  at  their  destination  when 
they  were  free  on  board,  as  not  only  was  London  the  place  of  des- 
tination, but  the  seller  was  to  find  the  vessel,  and  undertook  that  the 
goods  should  be  delivered  in  London.  Although  the  property  in  the 
goods  might  well  pass  when  the  bill  of  lading  was  handed  over  in 
exchange  for  the  accepted  bills,  still  that  does  not  determine  the 
question  as  to  the  right  to  stoppage  in  transitu,  the  distinction  be- 
ing well  established  upon  all  the  authorities,  and  especially  referred 
to  in  Van  Casteel  v.  Booker,  where  during  the  argument,  Mr.  (now 
Baron)  Martin,  so  far  conceding  against  the  interest  of  his  client, 
says  (2  Ex.  699) :  "The  general  rule  is  that  if  goods  are  shipped  o 
board  a  chartered  vessel  the  property  vests  in  the  consignee,  subject' 
to  the  right  of  stoppage  in  transitu ;    but  if  the  goods  are  placed  on 

right  at  law  to  stop  them  in  transitu  as  against  Tliomas,  the  vendee,  by  rea- 
son of  his  insolvency;  but  by  the  indorsement  of  the  bills  of  lading  to  the 
Defendant  (Ruding)  for  value,  that  right  was  taken  away.  The  question  then 
is,  what  right  the  Defendant  had  acquired  against  the  vendors  by  their  trans- 
actions with  Thomas.  The  bill  of  lading,  &c.,  were  transferred  to  them  by 
Thomas,  to  secure  the  repayment  of  the  £1000,  the  sum  advanced  to  Thomas  by 
means  of  the  Defendant's  acceptance.  This  I  consider  to  be  the  true  con- 
struction and  effect  of  the  memorandum  or  letter  of  the  9th  of  June,  1S41. 
They  had  a  clear  right,  therefore,  to  retain  the  goods,  and  to  be  paid  out  of 
the  proceeds  to  the  extent  of  those  advances  according  to  the  terms  of  the 
agreement.  They  had  both  a  legal  and  an  equitable  right  to  this  extent. 
In  this  s-'tate  of  things  the  vendors  attempt,  by  a  notice  to  the  captain,  to  stop 
the  goods  in  transitu.  This,  I  think,  upon  the  evidence,  was  given  in  time 
and  though  not  good  in  law,  by  reason  of  the  assignment  of  the  bills  of  lading, 
would,  I  am  of  opinion,  be  valid  in  equity  against  both  the  vendee  and  the 
Defendant  so  as  to  vest  in  Plaintiffs  a  right  to  the  surplus  of  the  produce  of 
the  wheat,  after  discharging  the  sum  for  which  it  was  pledged.  The  Defend 
ant  could  not,  under  these  circumstances,  retain  the  surplus  as  against  tho 
vendors  towards  the  liquidation  of  his  general  balance  due  to  Thomas  the 
vendee.  If  this  view  of  the  case  be,  as  I  think  it  is,  correct,  It  was  proper 
for  the  decision  of  a  Court  of  equity,  and  the  appeal  must  be  dismissed  with 
costs." 


4S8  KIGUTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

board  the  purchaser's  own  ship,  that  is  an  absolute  deHvery — the 
same  as  if  placed  in  his  cart.  The  shipper  may,  however,  protect 
himself  by  taking  a  bill  of  lading  making  the  goods  deliverable  to 
his  own  order  only ;  but  in  that  case  the  property  would  pass  as 
soon  as  he  indorsed  the  bill  of  lading  generally." 

In  the  same  way,  Lord  Chelmsford,  in  Schotsmans  v.  Lancashire 
and  Yorkshire  Railway  Company,  Law  Rep.  2  Ch.  337,  says  in  ref- 
erence to  the  case  of  Mitchel  v.  Ede,  11  Ad.  &  E.  888:  "It  appears 
to  me  that  this  case  was  not  decided  upon  the  distinction  between 
a  general  ship  and  one  sent  for  the  express  purpose  of  receiving 
the  sugar;  for  if  it  had  been  a  question  of  stoppage  in  transitu  upon 
a  sale  of  the  sugar  to  the  Defendants,  and  it  had  been  delivered  into 
the  Defendants'  own  vessel,  sent  out  for  the  purpose,  although  the 
property  in  the  goods  would  have  passed,  yet  the  eftect  of  the  de- 
livery would  have  been  restrained  by  the  indorsement  of  the  bill 
of  lading,  and  the  right  to  stop  in  transitu  would  have  been  pre- 
served." 

INIuch  stress  has  been  laid  upon  those  words  "free  on  board,"  as 
being  an  indication  of  the  nature  of  the  contract — that  the  transitus 
was  at  an  end  when  the  goods  were  on  board  the  purchaser's  own 
ship.  But  those  words  cannot  have  any  such  effect  in  a  contract 
framed  as  this  was,  where  the  intention,  as  expressed  by  the  con- 
tract, was,  that  there  was  to  be  no  delivery  on  board  the  purchaser's 
own  ship,  as  the  vendor  was  to  find  a  ship  (although  at  the  cost  of 
the  purchaser),  and  send  the  ship,  with  the  cargo,  to  London,  where 
the  transitus  w^ould  be  at  an  end.  That  contract,  however,  was 
waived  by  parol,  by  the  arrangement  subsequently  made,  under  which 
the  vendor  w-as  no  longer  to  find  a  ship,  but  was  discharged  from 
that  part  of  his  engagement.  A  ship  chartered  by  the  purchaser  is 
sent  out  from  London  for  the  purpose  of  taking  on  board  this  cargo, 
subject,  of  course,  to  the  payment  of  freight  when  the  cargo  should 
be  delivered  pursuant  to  the  charter  party.  That  being  so,  the  ven- 
dor takes  the  additional  precaution,  notwithstanding  the  purchaser 
charters  the  ship,  of  taking  the  bill  of  lading  in  this  form:  "Shipped 
by  him  (the  vendor),  to  be  delivered  at  the  port  of  London,  unto 
order  or  to  assigns."  The  bill  of  lading  having  been  taken  in  this 
form  the  bills  of  exchange  are  drawn  and  accepted,  and  while  the 
ship  was  on  her  voyage  the  bill  of  lading  w^as  indorsed  in  blank — 
a  circumstance  very  strongly  relied  upon  by  Mr.  Druce — and  de- 
livered to  the  purchaser  in  exchange  for  the  accepted  bills  of  ex- 
change. No  doubt  the  property  in  the  goods  would  pass,  but  that 
does  not  determine  the  question  whether  the  transitus  was  at  an 
end.  With  the  single  exception  that  the  bills  of  lading  are  made  out 
in  the  name  of  the  vendor  to  his  order,  or  assigns,  and  then  by  him 
indorsed  in  blank,  the  case  does  not  really  dift'er  from  Bohtlingk  v. 
Inglis,  3  East,  381,  nor  from  Spalding  v.  Ruding,  6  Beav.  376,  where 


Sec.  2)  STOPPAGE    IN    TRANSITU  489 

the  purchaser  had  the  bill  of  lading  handed  over  to  him  so  as  to  vest 
the  property  in   him. 

Does,  then,  the  shipping  of  goods,  in  the  name  of  the  vendor,  and  ' 
indorsing  over  the  bill  of  lading,  show  an  animus  on  the  part  of 
the  vendor  to  part  with  his  lien  and  abandon  his  right  of  stoppage 
in  transitu?  Now  there  are  two  criteria,  as  it  appears  to  me,  with 
respect  to  the  stoppage  in  transitu,  viz. :  whether  there  is  a  transitus 
at  all?  and  if  so,  where  it  is  to  end?  If  a  man  sends  his  own  ship. 
and  orders  the  goods  to  be  delivered  on  board  his  own  ship,  and 
the  contract  is  to  deliver  them  free  on  board,  then  the  ship  is  the 
place  of  delivery  and  the  transitus  is  at  end,  just  as  much  (as  was 
said  in  Van  Casteel  v.  Booker,  2  Ex.  691)  as  if  the  purchaser  had 
sent  his  own  cart,  as  distinguished  from  having  the  goods  put  into 
the  cart  of  a  carrier.  Of  course  there  is  no  further  transitus  after 
the  goods  are  in  the  purchaser's  own  cart.  There  they  are  at  home, 
in  the  hands  of  the  purchaser,  and  there  is  an  end  of  the  whole  de- 
livery. The  next  thing  to  be  looked  to  is,  whether  there  is  any  in- 
termediate person  interposed  between  the  vendor  and  the  purchaser. 
Cases  no  doubt  m.ay  arise,  where  the  transitus  may  be  at  aTi  end  al- 
though some  person  may  intervene  between  the  period  of  actual 
delivery  of  the  goods  and  the  purchaser's  acquisition  of  them.  The 
purchaser,  for  instance,  may  require  the  goods  to  be  placed  on  board 
a  ship  chartered  by  himself  and  about  to  sail  on  a  roving  voyage. 
In  that  case,  when  the  goods  are  on  board  the  ship  everything  is 
done;  for  the  goods  have  been  put  in  the  place  indicated  by  the 
purchaser,  and  there  is  an  end  of  the  transitus.  But  here,  where 
the  goods  are  to  be  delivered  in  London,  the  Plaintiff,  for  greater 
security,  takes  the  bill  of  lading  in  his  own  name,  and,  being  content 
to  part  with  the  property  in  the  goods,  subject  or  not,  as  the  case 
may  tie,  to  this  right  of  stoppage  in  transitu,  he  hands  over  the  bill 
of  lading  in  exchange  for  the  bill  of  exchange.  In  that  ordinary 
case  of  chartering  it  appears  to  me  that  the  captain  or  master  is  a 
person  interposed  between  vendor  and  purchaser  in  such  a  way  that 
the  transitus  is  not  at  an  end,  and  that  the  goods  will  not  be  parted  | 
with,  and  the  consignee  will  not  receive  them  into  his  possession,  until  I 
the  voyage  is  terminated  and  the  freight  paid  according  to  the  ar- 
rangement in  the  charter  party. 

Bohtlingk  v.  Inglis,  3  East,  381,  which  has  been  frequently  cited, 
and  never,  as  far  as  I  can  discover,  with  disapprobation,  seems  to 
have  furnished  the  rule  which  was  alluded  to  in  argument  in  Van 
Casteel  v.  Booker,  2  Ex.  691,  viz.,  that  if  the  goods  are  delivered  on 
board  a  chartered  ship,  the  property  vests  in  the  consignee,  subject  \ 
to  the  right  of  stoppage  in  transitu.  Mr.  Justice  Lawrence,  in  deliv-  ' 
ering  the  judgment  of  the  Court,  says  (3  East,  395) :  "For  the  benefit 
of  trade,  a  rule  has  been  introduced  into  the  common  law,  enabling 
the  consignor,  in  case  of  the  insolvency  of  the  consignee,  to  stop  the 
goods  consigned  before   they   come   into  the  possession  of   the  con- 


490  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Cll.  5 

signee,  which  possession  Buller,  J.,  in  Ellis  v.  Hunt,  3  T.  R.  466, 
says,  means  an  actual  possession.  That  the  possession  of  a  carrier 
is  not  such  a  possession,  has  been  repeatedly  determined,  and  the 
question  now  is,  whether  the  possession  of  the  master  be  anything 
more  than  the  possession  of  a  carrier,  and  not  the  actual  possession 
of  the  bankrupt.  *  *  *  j^-  does  not  differ  from  a  similar  con- 
tract entered  into  by  the  consignor,  by  the  directions  of  the  con- 
signee, at  the  loading  port,  for  the  conveyance  of  the  goods  from 
him  to  the  vendee."  In  other  words,  it  would  be  exactly  like  the 
original  engagement  in  the  present  case,  and  the  circumstance  of 
the  consignee  being  the  person  who  provides  the  ship,  makes  really 
no  substantial  difference  whatever — "in  which  case  it  would  hardly 
be  contended  that  a  delivery  by  the  consignor  to  the  master  of  the 
ship  for  the  purpose  of  carriage,  would  be  such  a  delivery  to  the 
vendee  as  to  prevent  the  right  of  stoppage  in  transitu.  In  each  case 
the  freight  would  be  to  be  paid  by  the  consignee ;  in  each  case  the 
ship  would  be  hired  by  him ;  and  there  would  be  no  dift'erence,  ex- 
cept that  in  this  case  the  ship,  in  consequence  of  the  agreement, 
goes  from  England  to  fetch  the  cargo," — just  as  in  the  case  now  be- 
fore me — "in  the  other  case,  the  vessel  would  bring  it  immediately 
from  the  loading  port ;  both  in  the  one  case  and  in  the  other  the  con- 
tract is  with  the  master  for  the  carriage  of  the  goods  from  one  place 
to  another ;  and  until  the  arrival  of  the  goods  at  their  point  of  des- 
tination, and  delivery  to  the  consignee,  they  are  in  their  passage  or 
transit  from  the  consignor  to  the  consignee." 

The  learned  Judge  distinguishes  the  case  from  that  of  Fowler  v. 
Kymer,  cited  in  Hodgson  v.  Loy,  7  T.  R.  442,  where  the  ship,  being 
under  the  complete  control  of  the  bankrupt,  had  the  goods  put  on 
board  her,  not  for  the  purpose  of  conveying  them  from  the  con- 
signors to  the  consignees,  but  that  they  might  be  sent  by  the  con- 
signees upon  a  mercantile  adventure  for  which  they  had  bought 
them,  and  there  the  delivery  to  the  consignees,  being  at  the  place 
pointed  out  by  them  where  the  delivery  should  be,  was  held  to  be 
complete.  Of  course  the  place  of  delivery  may  be  as  well  on  board 
the  ship  as  at  the  port  of  her  destination.  The  case  of  Van  Casteel 
v.  Booker,  2  Ex.  691,  does  not  appear  to  me  to  make  any  substantial 
difference.  There  it  was  the  vendee's  own  ship,  and,  as  was  said  by 
Parke,  B.,  in  the  judgment,  if  the  goods  were  put  on  board  to  be 
carried  for  and  on  the  account  and  risk  of  the  bankrupts,  the  de- 
livery on  board  put  an  end  to  the  right  of  stoppage  in  transitu ;  but 
the  vendor  took  the  precaution  which  was  held  eft'ectual  in  Turner 
V.  Trustees  of  Liverpool  Docks,  6  Ex.  543,  of  restraining  the  eft"ect 
of  that  delivery  by  the  indorsement  on  the  bill  of  lading.  The  Court 
there  (Van  Casteel  v.  Booker,  2  Ex.  691),  seems  to  have  thrown  out 
that  this  precaution  stopped  the  eft'ect  of  putting  the  goods  on  board 
the  vendee's  own  ship,  and  indicated  an  intention  not  to  part  with 
the  dominion  over  the  goods,  nor  vest  the  absolute  property  in  the 


Sec.  2)  STOPPAGE    IN    TRANSITU  491 

bankrupts.  The  case  before  me  is  still  stronger,  as  although  the 
vendor  has  taken  this  precaution  in  order  to  guard  himself  against 
any  possible  contingency,  still  the  ship  is  the  instrument  of  transit, 
and  in  parting  with  these  bills  of  lading  in  exchange  for  the  bills  of 
exchange,  he  is  aware  that  the  ship  has  been  chartered  for  the  pur- 
pose of  delivering  the  goods  at  the  port  of  London,  and  that  the 
master  of  the  ship  was  not  the  servant  of  the  vendee,  but  an  inter- 
mediate agent  who,  for  hire,  when  the  hire  was  paid,  was  to  deliver 
the  goods  in  London. 

It  appears  to  me,  therefore,  that  until  the  goods  reach  London 
the  transitus  is  not  ended.  Cowasjee  v.  Thompson,  5  Moo.  P.  C. 
165,  differs  in  every  respect  from  this  case.  There  a  ship  was  sent 
out,  goods  were  ordered  for  that  ship,  and  the  ship  being  the  property 
of  the  person  sending  her  out,  the  transitus  was  complete  when  the 
goods  were  delivered  on  board  pursuant  to  order,  nothing  else  being 
directed  or  intended  by  anybody.  Again  in  Schotsmans  v.  Lanca- 
shire and  Yorkshire  Railway  Company,  Law  Rep.  2  Ch.  332,  the 
ship  was  the  ship  of  the  vendee,  and  the  vendor  did  not  take  the 
precaution  of  preserving  his  right  of  stoppage  in  transitu  by  making 
the  goods  deliverable  to  his  order  or  assigns ;  the  goods  by  the  bill 
of  lading  being  made  deliverable  to  the  purchaser  or  assigns.  The 
whole  case  here  appears  to  me  to  turn  upon  whether  or  not  it  is  the 
man's  own  ship  that  receives  the  goods,  or  whether  he  has  contracted 
with  some  one  else  qua  carrier  to  deliver  the  goods,  so  that,  accord- 
ing to  the  ordinary  rule  as  laid  down  in  Bohtlingk  v.  Inglis,  3  East, 
381,  and  continually  referred  to  as  settled  law  upon  this  subject,  the 
transitus  is  only  at  an  end  when  the  carrier  has  arrived  at  the  place 
of  destination,  and  has  delivered  the  goods. 

I  must,  therefore,  follow  the  decision  in  Spalding  v.  Ruding,  6 
Beav.  Z7(i,  and  declare  the  plamtiff  entitled  out  of  the  fund  in  Court 
to  the  balance  due  upon  the  bill  of  exchange,  with  interest  from  the 
date  of  maturity. 


Ex  parte  ROSEVEAR  CHINA  CLAY  CO. 

In  re  COCK. 

(Court  of  Appeals,  1S79.     11  Ch.  Div.  560.) 

David  Cock  was  a  china  clay  merchant  at  Roche,  near  St.  Austell. 
On  the  20th  of  November,  1877,  he  wrote  to  the  Rosevear  China 
Clay  Company,  whose  works  were  at  Roche,  but  whose  office  was  at 
Cardiff,  as    follows : 

"Your  favour  respecting  china  clay  to  hand.  I  have  this  morning 
been  on  the  works  and  taken  several  samples  of  what  is  now  in 
stock.  I  regret  very  much  to  assert  that  what  appears  to  me  to 
have    been   put    in   the    clay    by    way    of    adulteration    will    prevent 


492  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE    GOODS  (Ch.  5 

me  from  purchasing.  It  miglit  and  probably  would  be  ruinous  to  all 
my  connection.  There  are  about  100  tons  of  the  old  stock  which 
has  not  been  so  treated,  and  which  I  would  purchase  at  15s.  per 
ton,  f.  o.  b.  Fowey,  payment  to  be  by  four  months'  acceptance  from 
date  of  bill  of  lading.  Same  to  be  shipped  during  this  month,  or, 
if  not,  bill  to  date  from  1st  December.  \\'aiting  favour  of  your 
reply,  "Yours  truly,  [Signed]     David  Cock." 

On  the  27th  of  November  Mr.  Carr,  the  company's  secretary  re- 
plied as  follows : 

"We  now  offer  you  the  balance  old  Rosevear  make,  80  to  100  tons, 
at  15s.  per  ton  f.  o.  b.  Par  or  Fowey,  4  months'  draft  dated  from 
1st  December  whether  shipped  or  not.  Please  say  if  you  confirm 
this." 

On  the  30th  of  November  Cock  replied  as  follows: 

"I  am  in  receipt  of  your  favour  of  27th  November,  accepting  my 
offer  for  the  old  stock  of  china  clay  at  Rosevear,  which  I  now  con- 
firm." 

On  the  1st  of  December  Mr.  Carr  replied  as  follows: 

"I  am  in  receipt  of  yours  of  30th  ult.,  which  is  two  days  over 
return  post.  This  delay  of  your  confirmation  of  the  purchase  has 
left  the  matter  open  for  others.  But,  as  we  have  not  definitely 
closed,  if  you  are  prepared  to  have  the  clay  offered  you  taken  on 
board  within  fourteen  days  from  the  date  of  my  offer,  and  accept 
our  draft  from  1st  December  at  four  months  next,  we  will  with- 
draw from  confirming  sale  to  another  party,  but  you  must  reply 
here  definitely  4th  inst.,  or  the  matter  falls  through." 

On  the  12th  of  December  Cock  replied : 

"I  have  a  vessel  of  215  tons  which  will  load  at  Fowey  on  Friday 
next,  so  now  I  can  take  your  100  tons  of  Rosevear  clay  upon  your 
terms  as  p5r  your  last  letter.  Let  me  know  not  later  than  Friday 
morning  if  I  am  to  have  the  clay  or  not." 

On  the  13tli  of  December  a  clerk  of  the  company  replied : 

"In  reply  to  yours  of  12th  inst.,  I  beg  to  say,  in  the  absence  of 
Mr.  Carr,  who  is  away  from  home,  we  will  sell  you  the  80  to  100 
tons  china  clay  (old  Rosevear  make)  as  per  conditions  mentioned  in 
Mr.  Carr's  letters  to  you  of  Nov.  27  and  Dec.  1.  I  have  instructed 
Captain  Dyer  by  this  post  to  send  the  name  to  Fowey  at  once." 

On  the  27th  of  December  Mr.  Carr  wrote  to  Cock : 

"Mr.  Dyer  has  handed  account  to  day  by  letter  which  makes  108 
tons  2  qrs.  2  cwt.  clay  as  shipped  for  your  account,  value  iSl.  Is.  lOd. 
There  is  an  old  balance  due  to  us  of  £11.  7s.  8d.  Do  you  wish 
this  added  to  the  draft  £81.  Is.  lOd?  If  so,  I  have  no  objec- 
tion, and  will  send   draft  for  your  acceptance  in   a  day  or  two." 

Cock  had  on  the  5th  of  December  entered  into  a  verbal  agreement 
to  charter  a  ship,  called  the  Forester,  to  call  at  Fowey,  to  convey 
the  clay  for  him,  with  other  clay,  to  Glasgow,  consigned  to  an  agent 
there  for  sale.     No  charter  party  was  signed.     On  the  29th  of  De- 


Sec.  2)  STOPPAGE    IN    TRANSITU  49o 

cember  the  company  delivered  100  tons  of  the  clay  on  board  the 
Forester  at  Fowey.  No  bill  of  lading  was  signed.  Cock  did  not 
reply  to  Carr's  letter  of  the  27th  of  December.  He  was  in  fact  in- 
solvent, and  had  committed  an  act  of  bankruptcy  on  the  24th  of 
December  by  absconding.  On  the  31st  of  December  tlie  company, 
having  heard  that  he  was  insolvent,  gave  notice  to  the  master  of 
the  Forester,  which  was  still  in  Fowey  harbour,  to  stop  the  clay  in 
transitu.  The  master  afterwards  signed  a  bill  of  lading  in  favour 
of  the  company,  and  by  their  directions  the  clay  was  taken  to  Run- 
corn instead  of  to  Glasgow,  and  was  there  sold  on  their  account. 
Cock  was  ultimately  adjudicated  a  bankrupt  in  the  Truro  County 
Court. 

The  trustee  in  the  bankruptcy  claimed  the  value  of  the  clay,  on 
the  ground  that  the  transit  was  at  an  end   when  it  was  shipped  on 
board  the  Forester,  and  that  therefore  the  notice  to  stop  in  transitu 
came  too  late.     The  trustee  applied  to  the  County  Court  for  an  or- 
der that  the  company  should  pay  over  to  him  the  invoice  price  of 
the  clay.     On  the  hearing  of  the  application   the  bankrupt  was   ex- 
amined, and  said:    "I  was  in  the  habit  of  buying  and  sending  clay 
all  over  the  country.     I  did  not   inform  the  Rosevear  Company  o 
the  destination  of  the  clay.     I  never  used  to  reveal  the  ultimate  des 
tination    of    cargoes.      I    communicated   the    name    of    the    vessel   t 
the   vendors  on  the    12th  of   December."     The   invoice   of  the   clay 
and  the  bill  of  exchange  for  acceptance  were  sent  through  the  post 
by  Carr  to  Cock   on  the  29Lh  of  December,  but  the  bill  was  never 
accepted. 

The  Judge  of  the  County  Court  was  of  opinion  that  it  was  the 
intention  of  both  the  parties  that  the  property  in  the  clay  should 
not  pass  to  the  purchaser  until  the  bill  of  exchange  for  the  price 
had  been  accepted  by  him.  But,  even  if  the  property  did  pass,  His 
Honour  was  of  opinion  that  the  clay  never  came  into  the  possession 
of  the  bankrupt,  that  the  transitus  was  not  at  an  end  when  it  was 
placed  on  board  the  ship,  and  that  consequently  the  company  had 
a  right  to  stop  in  transitu,  which  right  they  had'  effectually  exer- 
cised.    His    Honour,   therefore,    refused   the   trustee's   application. 

The  trustee  appealed  to  the  Chief  Judge.  The  appeal  was  heard 
on  the  3rd  of  February,    1879. 

Bacon,  C.  J.  I  cannot  see  what  the  bill  of  lading  has  to  do  with 
this  question.  No  doubt  the  vendors  might,  if  they  had  thought  fit, 
have  taken  a  bill  of  lading,  which  would  have  secured,  not  the  pos- 
session of,  but  a  right  to,  the  property  mentioned  in  the  bill  of  lad- 
ing; but  they  did  not.  Their  omission  to  do  so  cannot  be  used  in 
their    favour. 

The  transaction  is  as  plain  a  one  as  was  ever  stated.  A  man  wants 
to  buy  china  clay,  a  heavy  commodity,  a  thing  which  he  cannot  carry 
in  his  own  waggons,  and  does  not  mean  to  do  so,  but  he  tells  the 
company  that  he  will  get  a  ship  to  transport  this  clay  which  he  buys 


494  RIGHTS   OF    UNPAID    SELLER    AGAIKST  THE   GOODS  (Ch.  5 

of  them.  He  afterwards  gives  them  the  name  of  the  ship,  and  di- 
rects them  to  deliver  the  clay  which  he  has  bought  on  board  that 
ship.  If  it  had  been  a  warehouse  instead  of  a  ship,  could  there  be 
any  doubt  that  after  the  clay  had  been  carried  to  the  warehouse 
the  transitus  would  have  been  at  an  end?  I  have  no  doubt  that 
the  transitus,  such  as  it  was,  ended  when  the  clay  arrived  upon  the 
quay  at  Fowey  and  was  put  into  the  ship  Forester,  which  the  bank- 
rupt had  hired  for  the  very  purpose  of  carrying  it.  Valpy  v.  Gib- 
son is  directly  in  point  on  the  part  of  the  case  which  I  am  now  con- 
sidering. There  there  was  that  which  was  a  little  more  remarkable, 
and  which  probably  gave  rise  to  some  argument.  The  vessel  in  which 
the  goods  were  to  be  shipped  was  destined  for  Valparaiso,  and 
the  vendors  of  the  goods  wanted  some  patterns  or  cards  of  theirs 
to  be  sent  along  with  the  goods,  and,  knowing  well  enough  that  the 
ship  was  going  to  Valparaiso,  they  gave  a  direction  to  that  effect 
when  they  delivered  the  goods.  The  Court  decided  that,  when  the 
goods  were  delivered  upon  the  ship,  which  had  been  hired  for  the 
purpose  of  transport  by  the  purchaser,  there  was  an  end  of  the 
transit.  Delivery  "free  on  board"  only  means  "The  price  shall  be 
that  which  we  stipulate  for,  and  you  shall  not  have  to  pay  for  the 
waggons  or  carts  necessary  to  carry  the  clay  from  the  place  where 
it  is  dug;  we  will  bear  all  those  charges  and  put  it  free  on  board 
the  ship,  the  name  of  which  you  are  to  furnish." 

I  cannot  think  that  any  question  arises.  The  fact  that  the  bill  of 
exchange  had  not  been  accepted  does  not  alter  the  case  in  the  slight- 
est degree.  On  the  29th  of  December  the  china  clay,  v;hich  had  been 
bought  and  sold,  was  by  the  vendors  placed  on  board  the  ship ;  they 
inever  thought  of  taking  a  bill  of  lading,  or  of  retaining  any  right 
lover  it,  but  they  delivered  it  to  the  man  who  had  bought  it  of  them. 
\There  is  no  doubt  upon  the  facts  of  the  case,  and  there  can  be  no 
doubt  whatever  about  the  law.  There  was  no  transit,  except  from 
the  quarry  to  the  ship's  side;  the  transit  was  ended  so  soon  as  the 
clay  was  on  board  the  ship,  and  the  right  to  stop  it  was  therefore 
entirely  gone.  None  of  the  cases  which  have  been  referred  to  give 
any  kind  of  colour  to  the  claim  raised  on  the  part  of  the  vendors  to 
have  this  clay  treated  as  still  belonging  to  them,  although  they  had 
delivered  it  free  on  board  in  the  manner  and  at  the  price  stipulated 
for   in  the   contract   between   the  parties. 

However,  the  learned  Judge  of  the  County  Court  took  a  very  dif- 
ferent view  of  the  subject.  He  seems  to  have  bestowed  a  great 
deal  of  attention  upon  it,  and  to  Have  considered  many  cases,  the 
bearing  of  which  on  the  question  before  me  I  have  not  been  able 
to  perceive;  but,  as  he  gave  a  very  deliberate  and  considered  judg- 
ment, which  is  entitled  to  all  respect,  and  as,  moreover,  he  invited 
the  parties  to  take  the  case  up  to  the  highest  Court,  I  am  content 
that  it  should  go  there.  But  I  should  be  sorry  if  it  went  with  any 
expression  of  doubt  on  my  part.     I  am  clear  that  this  is  a  case  in 


Sec.  2)  STOPPAGE  IN  TRANSITU  495 

which  the  vendor's  right  of  stoppage  in  transitu  ceased  to  exist  the 
moment  the  clay  was  put  on  board  the  ship. 

From  this  decision  the  Rosevear  Company  appealed.  The  appeal 
was  heard  on  the  24th  of  April,  1879. 

James,  L.  J.  With  all  respect  for  the  decision  of  the  Chief  Judge, 
I  am  of  opinion  that  this  case  cannot  be  distinguished  from  the  au- 
thorities which  have  been  referred  to,  in  particular  that  of  Berndtson 
V.  Strang.  The  authorities  show  that  the  vendor  has  a  right  to  stop 
in  transitu  until  the  goods  have  actually  got  home  into  the  hands  of 
the  purchaser,  or  of  some  one  who  receives  them  in  the  character 
of  his  servant  or  agent.  That  is  the  cardinal  principle.  In  order 
that  the  vendor  should  have  lost  that  right  the  goods  must  be  in 
the  hands  of  the  purchaser  or  of  some  one  who  can  be  treated  as 
his  servant  or  agent,  and  not  in  the  hands  of  a  mere  intermediary. 
It  is  admitted  that  if  it  had  been  mentioned  in  the  original  contract 
for  sale  that  the  goods  were  to  be  carried  to  Glasgow  the  present 
case  could  not  have  been  distinguished  from  Berndtson  v.  Strang,  but 
it  is  said  that  the  fact  that  no  ultimate  destination  was  mentioned 
affords  a  distinction.  It  seems  to  me,  however,  that  the  mere  fact 
that  the  port  of  destination  was  left  uncertain,  or  was  changed  after 
the  contract  for  sale,  can  make  no  difference. 

The  principle  is  this — that  when  the  vendor  knows  that  he  is 
delivering  the  goods  to  some  one  as  carrier,  w^ho  is  receiving  them 
in  that  character,  he  delivers  them  with  the  implied  right  which  has 
been  established  by  the  law,  of  stopping  them  so  long  as  they  remain 
in  the  possession  of  the  carrier  as  carrier.  I  am  of  opinion  that  in 
the  present  case,  although  the  vendors'  liability  was  at  an  end  when 
they  had  delivered  the  clay  on  board  the  ship,  which  indeed  is  the 
case  in  most  instances  of  stoppage  in  transitu,  that  did  not  deprive 
them  of  the  right  to  stop  in  transitu  so  long  as  the  clay  was  in  the 
possession  of  the  master  of  the  ship  as  a  carrier.  To  use  the  lan- 
guage of  Lord  Cranworth  (then  Baron  Rolfe),  in  Gibson  v.  Car- 
ruthers,  8  M.  &  W.  321,  328,  "I  consider  it  to  be  of  the  very  essence 
of  that  doctrine,  that  during  the  transitus  the  goods  should  be  in 
the  custody  of  some  third  person,  intermediate  between  the  seller 
who  has  parted  with,  and  the  buyer  who  has  not  yet  acquired,  actual 
possession,"  and  that  language  was  adopted  by  Vice-Chancellor  Wood, 
and  by  Lord  Cairns  in  Berndtson  v.  Strang,  Law  Rep.  4  Eq.  481 ; 
Id.,  3  Ch.  588,  590.  The  clay  in  the  present  case  was  delivered  to  a 
third  person  intermediate  betv/een  the  vendors  and  the  purchaser, 
and  therefore  the  vendors  still  had  a  right  of  stoppage  in  transitu. 

Brktt,  L.  J.  It  seems  to  me  that  there  was  a  binding  contract  be- 
tween the  vendors  and  the  purchaser,  though  by  it  alone  the  prop- 
erty in  the  clay  did  not  pass  to  the  purchaser.  But,  as  soon  as  the 
clay  was  appropriated  by  the  vendors  to  this  contract,  and  was  placed 
on  board  the  ship,  the  property  in  it  passed  to  the  purchaser,  and 
at  the  same  time,  as  between  the  vendor  and  the  purchaser,   there 


496  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

was  a  delivery  of  the  clay  to  the  latter.  But  it  was  a  constructive, 
not  an  actual  delivery.  If  the  contract  had  been  to  deliver  to  the 
purchaser  at  Fowey,  and  the  clay  had  been  there  delivered  to  him  or 
to  his  agent,  and  he  or  his  agent  had  then  shipped  it,  I  should  have 
thought  that  after  that  there  would  have  been  no  transit.  But  the 
contract  was  to  deliver  at  Fowey,  on  board  a  ship,  and  to  deliver 
free  on  board,  that  is,  the  vendors  undertook  the  delivery  of  the 
goods.  The  ship  was  to  be  chartered  by  the  purchaser,  and  he  must 
charter  the  ship  to  carry  the  clay  to  some  port. 

The  distinction  taken  by  Mr.  Northmore  Lawrence  is  an  ingenious 
one,  but  it  seems  to  me  that  it  can  make  no  difference  whether  the 
destination  of  the  goods  is  communicated  to  the  vendor  at  the  time 
of  the  contract  for  sale,  or  whether  the  destination  is  to  be  named 
after  the  contract  but  before  the  shipment.  Here  the  purchaser  en- 
tered into  an  agreement  with  the  owner  of  the  ship  that  the  ship 
should  take  the  clay  to  Glasgow^  and  the  vendors  were  bound  to  put 
the  clay  on  board  that  ship  to  be  carried  to  Glasgow.  It  was  not  the 
purchaser's  own  ship,  but  that  of  the  shipowner,  and  the  clay  when 
delivered  on  board  was  to  be  carried  to  Glasgow.  The  question  is 
whether  the  transit  was  at  an  end  before  the  arrival  of  the  ship  at 
Glasgow?  It  seems  to  me  that  several  decided  cases  show  that  it 
was  not.  In  James  v.  Grifhn,  2  M.  &  W.  623.  Baron  Parke  laid 
down  the  law  thus  (Id.  632):  "Of  the  law  on  this  subject,  to  a  cer- 
tain extent,  and  sufficient  for  the  decision  of  this  case,  there  is  no 
doubt.  The  delivery  by  the  vendor  of  goods  sold  to  a  carrier  of 
any  description,  either  expressly  or  by  implication  named  by  the 
vendee,  and  who  is  to  carry  on  his  account,  is  a  constructive  de- 
livery to  the  vendee;  but  the  vendor  has  a  right,  if  unpaid,  and  if 
Ithe  vendee  be  insolvent,  to  retake  the  goods  before  they  are  actually 
Idelivered  to  the  vendee,  or  some  one  whom  he  means  to  be  his  agent 
10  take  possession  of  and  keep  the  goods  for  him,  and  thereby  to 
replace  the  vendor  in  the  same  situation  as  if  he  had  not  parted  with 
the  actual  possession."  The  distinction  there  taken  is  between  a  con- 
structive and  an  actual  delivery  to  the  purchaser,  and  he  says  that 
if  there  is  only  a  constructive  delivery  to  the  purchaser  the  transit 
is  not  over  until  the  goods  have  been  actually  delivered  to  him  or  his 
agent. 

Then,  in  Berndtson  v.  Strang,  Law  Rep.  3  Ch.  588,  the  test  put 
by  Lord  Cairns  is,  whether  the  goods  have  been  delivered  only  to  a 
carrier,  although  he  may  have  been  named  by  the  purchaser.  There 
the  ship  had  been  chartered  by  the  purchaser,  and  therefore,  when 
the  goods  were  placed  on  board  there  was  a  constructive  delivery 
to  him.  Yet,  because  the  goods  were  in  the  hands  of  the  shipowner 
as  carrier,  it  was  held  that  the  transit  was  not  over  until  that  car- 
riage was  over.  So,  too,  in  Smith's  Leading  Cases,  in  the  notes  to 
Lickbarrow  v.  Mason  (7th  Ed.)  vol.  1,  p.  818,  it  is  said:  "The  rule 
to  be  collected  from  all  the  cases  is,  that  the  goods  are  in  transitu 


Sec.  2)  STOPPAGE    IN    TRANSITU  497 

SO  long  as  they  are  in  the  hands  of  the  carrier  as  such,  whether  he 
was  or  was  not  appointed  by  the  consignee." 

In  the  present  case  the  clay  was  placed  on  board  the  ship  for  the 
purpose  of  being  carried  to  Glasgow ;  it  was  in  the  actual  possession 
of  the  shipowner,  and  only  in  the  constructive  possession  of  the  pur- 
chaser. Therefore  the  right  of  stoppage  in  transitu  existed.  If  the 
purchaser  had  been  the  owner  of  the  ship,  the  vendors  would  have\ 
had  no  such  right,  unless  they  had  reserved  it  by  express  stipulation. 
But,  in  the  actual  state  of  things,  I  think  that,  both  on  principle  andj 
on  the  authorities,  the  transit  was  not  over  and  the  right  to  stop  in 
transitu  remained.^" 


BETHELL  &  CO.  v.  CLARK  &  CO. 

(Court  of  Appeals,  1888.     20  Q.  B.  Div.  615.) 

The  facts  are  fully  stated  in  the  report  of  the  case  in  the  court  be- 
low (19  Q.  B.  D.  553).  For  the  purposes  of  this  report  they  may  be 
briefly  stated  as  follows : 

The  special  case  was  stated  on  interpleader  proceedings  to  deter- 
mine the  title  to  the  possession  of  certain  goods.  The  goods  had  been 
sold  by  Clark  &  Co.,  ironfounders  at  Wolverhampton,  to  Tickle 
&  Co.,  of  London.  The  order  for  the  goods  did  not  specify  any  place 
to  which  they  were  to  be  sent,  but  on  June  28,  1885,  the  purchasers 
wrote  the  vendors  as  follows :  "Please  consign  the  ten  hogsheads  of 
hollow  ware  to  the  Darling  Downs,  to  Melbourne,  loading  in  the  East 
India  Docks  here."  The  goods  were  delivered  by  the  vendors  to  the 
London  and  North  Western  Railway  Company,  to  be  forwarded  to 
the  ship.  They  were  accordingly  sent  by  railway  to  Poplar,  and  taken 
thence  to  the  ship  in  lighters  by  the  Thames  Steam  Tug  and  Light- 
erage Company,  as  agents  of  the  railway  company,  a  mate's  receipt 
being  taken  for  them  on  shipment,  which  was  forwarded  to  the  pur- 
chasers. The  vendors  being  informed  that  the  purchasers  were  in- 
solvent gave  notice  to  the  railway  company  to  stop  the  delivery  of 
the  goods  on  board  the  ship ;  and  the  railway  company  gave  a  sim- 
ilar notice  to  the  lighter  company,  but  too  late  to  prevent  the  ship- 
ment of  the  goods  on  the  Darling  Downs.  Bills  of  lading  for  the 
goods  in  accordance  with  the  mate's  receipt  had  been  made  out  and 
signed  ready  for  delivery,  but,  not  having  been  applied  for  at  the  time, 
they  remained  in  the  possession  of  Bethell  &  Co.,  the  owners  or  agents 
for  the  owners  of  the  Darling  Downs,  who  were  stakeholders  in  the 
interpleader.  Shortly  after  the  shipment  the  Darling  Downs  pro- 
ceeded to  ]\Ielbourne  with  the  goods  on  board,  but  before  she  arrived 

10 A  concurring  opinion  was  delivered  by  Cotton,  L.  J.,  and  the  appeal  was 
allowed,  with  costs. 

Woodw.Sale  s — 32 


498  RIGHTS   OF    UNrAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

at  Melbourne  the  vendors  wrote  to  the  shipowners  claiming  the  goods 
as  their  property. 

A  petition  in  bankruptcy  having  been  filed  by  the  purchasers  of  the 
goods,  a  scheme  of  arrangement  was  sanctioned  by  the  creditors,  and 
a  trustee  appointed  to  administer  their  estate  and  effects.  The  goods 
being  claimed  by  such  trustee  and  also  by  the  vendors,  the  shipowners 
interpleaded.  The  question  for  the  Court  was  whether  the  trustee 
or  the  vendors  were  entitled  to  the  possession  of  or  property  in  the 
goods. 

The  Court  below  (Mathew  and  Cave,  JJ.)  gave  judgment  for  the 
vendors  on  the  ground  that  the  right  of  the  vendors  to  stop  the  goods 
in  transitu  continued  till  they  arrived  at  Melbourne. 

Lord  EsHER,   AI.  R.     In  this  case  the  vendors  being  unpaid  and 
the  purchasers  having  become  insolvent,  according  to  the  law  mer- 
chant the  vendors  had  a  right  to  stop   the  goods  while  in  transitu, 
although  the  property  in  such  goods  might  have  passed  to  the  pur- 
chasers.    The  doctrine  of  stoppage  in  transitu  has  always  been  con- 
strued favourably  to  the  unpaid  vendor.     The  rule  as  to  its  applica- 
tion has  been  often  stated.    When  the  goods  have  not  been  delivered 
to  the  purchaser  or  to  any  agent  of  his  to  hold  for  him  otherwise 
I  than  as  a  carrier,  but  are  still  in  the  hands  of  the  carrier  as  such  and 
j  for  the  purposes  of  the  transit,  then,  although  such  carrier  was  the 
I  purchaser's  agent  to  accept  delivery  so  as  to  pass  the  property,  never- 
theless the  goods  are  in  transitu  and  may  be  stopped.    There  has  been 
a  difficulty  in  some  cases  where  the  question  was  whether  the  original 
transit  was  at  an  end,  and  a  fresh  transit  had  begun.     The  way  in 
which  that  question  has  been  dealt  with  is  this :     Where  the  transit 
is  a  transit  which  has  been  caused  either  by  the  terms  of  the  contract 
or  by  the  directions  of  the  purchaser  to  the  vendor,  the  right  of  stop- 
page in  transitu  exists :   but,  if  the  goods  are  not  in  the  hands  of  the 
carrier  by  reason  either  of  the  terms  of  the  contract  or  of  the  direc- 
tions of  the  purchaser  to  the  vendor,  but  are  in  transitu  afterwards 
Tin  consequence  of  fresh  directions  given  by  the  purchaser  for  a  new 
I  transit,  then  such  transit  is  no  part  of  the  original  transit,  and  the 
I  right  to  stop  is  gone.     So  also,  if  the  purchaser  gives  orders  that  the 
goods  shall  be  sent  to  a  particular  place,  there  to  be  kept  till  he  gives 
fresh   orders  as   to  their  destination  to   a  new  carrier,   the  original 
transit  is  at  end  when  they  have  reached  that  place,  and  any  further 
transit  is  a  fresh  and  independent  transit. 

The  question  is,  under  which  of  these  heads  the  present  case  conies. 
In  this  case  the  contract  does  not  determine  where  the  goods  are  to 
go.  It  is  argued  for  the  vendors  that  directions  were  given  by  the 
purchasers  to  the  vendors  that  the  goods  should  be  forwarded  by  car- 
riers to  IMelbourne,  so  that  while  they  were  in  the  hands  of  any  of 
the  different  sets  of  carriers  who  would  necessarily  be  employed  in 
so  forwarding  them,  and  until  they  arrived  at  Melbourne,  they  were 


Sec.  2)  STOPPAGE    IN    TRANSITU  499 

Still  in  transitu.  The  question,  whether  that  is  so,  is  a  question  of 
fact  in  the  particular  case.  The  goods  were  purchased  at  Wolver- 
hampton, and,  after  the  contract  was  made,  the  purchasers  gave  di- 
rections once  and  once  only  as  to  what  was  to  be  done  with  them. 
It  was  argued  that  those  directions  were  to  deliver  them  on  board  a 
particular  ship  in  the  East  India  Docks,  and  that  there  were  no  direc- 
tions beyond  the  directions  for  such  delivery,  but  that  a  fresh  direc- 
tion as  to  the  ultimate  destination  of  the  goods  would  be  required; 
and  therefore  the  original  transitus  was  at  an  end  when  the  goods 
were  put  on  board  the  ship.  That  question  turns  on  the  true  construc- 
tion of  the  letter  of  June  28,  which  says :  "Please  deliver  the  ten 
hogsheads  of  hollow  ware  to  the  Darling  Downs,  to  Melbourne,  load- 
ing in  the  East  India  Docks  here."  The  argument  really  amounted 
to  saying  that  the  meaning  was  that  the  goods  were  to  be  delivered 
on  board  the  ship  to  be  kept  by  those  in  charge  of  her  as  in  a  ware- 
house, and  subject  to  orders  from  the  purchasers  either  to  deliver 
the  goods  back  again  out  of  the  ship  or  to  take  them  on  where  the 
ship  was  going.  That  cannot  be  the  business  meaning  of  the  transac- 
tion. Here  we  have  a  ship  loading  in  the  docks  for  Melbourne,  and 
the  captain  would  have  no  authority  to  receive  goods  on  board  as  a 
warehouseman,  or  for  any  purpose  but  to  be  carried  to  Melbourne. 
The  meaning  is  that  the  goods  were  to  be  delivered  on  board  to  be  car- 
ried to  Melbourne.  What  would  be  the  mode  in  which  they  would  be 
so  delivered?  They  would  be  put  on  board  and  the  mate's  receipt 
would  be  taken  for  them,  the  terms  of  which  would  show  that  the 
goods  were  received  for  carriage  to  Melbourne,  and  a  bill  of  lading 
would  afterwards  be  signed  in  the  terms  of  such  receipt.  That  is 
v/hat  was  done  here. 

It  follows,  in  my  opinion,  that  those  goods  were  in  the  hands  of 
carriers  as  such,  and  in  the  course  of  the  original  transitus  from  the 
time  they  left  Wolverhampton  till  they  reached  Melbourne.  The  case 
therefore  falls  within  the  doctrine  of  stoppage  in  transitu,  and  is  not 
within  the  class  of  cases  where,  goods  going  through  the  hands  of  a 
number  of  carriers,  at  some  stage  in  the  process  fresh  directions  are 
required  from  the  purchaser  as  to  further  carriage.  Here  no  such 
further  directions  were  required.  The  letter  of  June  28  gives  all  the 
directions  necessary  for  the  transit  to  Melbourne.  It  is  not  necessary 
to  refer  to  all  the  authorities  cited.  The  argument  of  the  counsel  for 
the  trustee  is  directly  met  by  what  was  said  by  Bowen,  L.  J.,  in  Ken- 
dal v.  Marshall  Stevens  &  Co.,  11  O.  B.  D.  356,  at  p.  369.  He  there 
said:  "Where  goods  are  bought  to  be  afterwards  dispatched  as  the 
vendee  shall  direct,  and  it  is  not  part  of  the  bargain  that  the  goods 
shall  be  sent  to  any  particular  place,  in  that  case  the  transit  only  ends 
when  the  goods  reach  the  place  ultimately  named  by  the  vendee  as 
their  destination.  In  Coates  v.  Railton,  6  B.  &  C.  422,  several  cases 
were  cited  by  Bayley,  J.,  in  the  course  of  his  judgment,  and  the  prin- 


oOO  EIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

ciple  to  be  deduced  from  them  is,  that  where  goods  are  sold  to  be 
sent  to  a  particular  destination,  the  transitus  is  not  at  an  end  until 
the  goods  have  reached  th.e  place  named  by  the  vendee  to  the  vendor 
as  their  destination."  In  Ex  parte  ]\Iiles,  15  O.  B.  D.  39,  I  cited 
the  test  laid  down  by  Lord  EHenborough  in  Dixon  v.  Baldwen,  5  East, 
175,  where  he  says,  "The  goods  had  so  far  gotten  to  the  end  of  their 
journey  that  they  waited  for  new  orders  from  the  purchaser  to  put 
them  again  in  motion,  to  communicate  to  them  another  substantive 
destination,  and  that  without  such  orders  they  would  continue  sta- 
tionary;" and,  applying  that  rule  to  the  case  then  before  me,  I  held 
that  the  goods  had  in  that  case  got  to  the  end  of  their  journey  when 
they  arrived  at  Southampton.  That  would  not  be  the  case  here; 
when  the  goods  were  put  on  board  the  ship,  they  would  be  in  motion 
without  any  fresh  orders  being  necessary  until  they  reached  Mel- 
bourne. 

Therefore,  in  my  opinion,  the  right  to  stop  in  transitu  still  existed, 
and  was  rightly  exercised  by  the  vendors.  I  think  the  decision  of  the 
Court  below  was  correct,  and  that  this  appeal  must  be  dismissed.  ^^ 


MEMPHIS  &  L.  R.  R.  CO.  v.  FREED. 

(Supreme   Court  of  Arkausas,   1SS2.     38    Ark.   614.) 

Freed,  a  merchant  at  Dardanelle,  ordered  of  Walker  Bros.  &  Co., 
merchants  at  St.  Louis  and .  Memphis,  a  bill  of  dry  goods.  Walker 
Bros.  &  Co.  transmitted  the  order  to  Lehman,  Abrahams  &  Co., 
merchants  at  New  Orleans,  with  directions  to  ship  the  goods  to  Freed, 
at  Dardanelle,  and  send  the  invoice  and  bill  of  lading  to  them.  Leh- 
man, Abrahams  &  Co.,  filled  the  order  and  shipped  the  goods  to 
Freed,  by  way  of  Hopefield,  charged  them  to  Walker  Bros.  &  Co., 
and  sent  the  invoice  and  bill  of  lading  to  them,  and  they  charged  the 
goods  to  Freed. 

At  Hopefield  the  g-oods  were  delivered  to  the  defendant  company, 
to  be  transported  on  their  road  to  Argenta,  and  thence,  to  be  for- 
warded to  Freed,  at  Dardanelle.  While  the  goods  were  in  transit 
from  New  Orleans,  Walker  Bros.  &  Co.  failed,  and  Lehman,  Abra- 
hams &  Co.  claiming  the  right  of  stoppage  in  transitu,  demanded  the 
goods  from  the  defendant  company,  and  they  were  delivered  to  them. 

Freed  then  sued  the  company  for  the  value  of  the  goods,  for  not 
delivering  them  as  contracted  in  their  bill  of  lading.  Upon  the  trial, 
the  defendant  objected  to  the  introduction  of  the  following  testimony 
of  Freed : 

"That  early  in  October,  1879.  he  sent  an  order  to  \\'alker  Bros.  & 
Co.,  of   St.  Louis,  AIo.,  to  send  him  some  sheeting  and  yarn,  which 

11  Coucurring  opinions  were  delivered  by  Fey  and  Lopes,  L.  J  J. 


Sec.  2)  STOPPAGE    IN    TRANSITU  501 

were  the  same  mentioned  in  the  complaint,  and  the  same  were  charged 
to  him  by  Walker  Bros.  &  Co.  That  the  following  was  a  copy  of  a 
letter  sent  by  Lehman,  Abrahams  &  Co.,  of  New  Orleans,  to  Walker 
Bros.  &   Co.,  to-wit : 

"  'New  Orleans,  La.,  October  28,  1879. 
"  'Messrs.  Walker  Bros.  &  Co.,  St.  Louis : 

"  'Sirs — We  enclose  bill  of  lading  and  invoice  of  goods  shipped 
to  C.  M.  Freed,  as  per  your  instructions,  amounting  to  $507.44,  for 
which  please  credit  our  account.  We  shipped  the  goods  via  Hope- 
field. 

"  'Yours  truly,  Lehman,  Abrahams  &  Co.'  " 

The  objection  to  this  testimony  was  overruled,  and  after  other  tes- 
timony, showing  the  facts  above  stated,  there  was  a  verdict  for  the 
plaintiff,   and   from   final   judgment  the    defendant   appealed. 

Eakin,  J.  ^2  There  was  no  error  in  admitting  the  testimony  of 
plaintiff,  Freed,  to  show  that  he  had  ordered  the  goods  from  Walker 
Bros.  &  Co.  The  right  of  stoppage  in  transitu  does  not  arise  from/ 
any  contract  between  the  parties.  It  is  a  commercial  right,  arisingi 
from  the  circumstances ;  and  it  is  competent  to  show  the  facts.  The 
fact  intended  to  be  shown,  by  this  testimony,  was,  that  the  plaintiff. 
Freed,  to  whom  the  goods  were  shipped,  was  the  real  owner,  by 
purchase  from  Walker  Bros.  &  Co.,  and  that  the  goods  were  not 
shipped  to  him,  as  the  agent  of  Walker  Bros.  &  Co.,  who  ordered 
them  from  the  New  Orleans  firm,  and  directed  them  to  be  sent  to 
Freed  at  Dardanelle;  but  that  the  goods,  if  they  had  come  to  his 
possession,  would  have  been  received  by  him,  not  as  the  goods  of 
W^alker  Bros.  &  Co.,  but  as  his  own.  In  other  words,  it  tended  to 
show  that  the  relation  of  vendor  and  vendee  did  not  exist  between 
him  and  the  consignors,  but  between  him  and  the  firm  of  Walker 
Bros.  &  Co. ;  and  that  there  was  never  any  consignment,  or  tran- 
situs  of  the  goods  to  the  original  purchasers,  either  in  their  own 
names,  or  to  them  in  his  name,   as   agent. 

If  he  had  really  been  the  agent  of  Walker  Bros.  &  Co.,  or  under 
any  obligations  to  receive  the  goods  for  them,  the  right  of  Lehman, 
Abrahams  &  Co.,  the  consignors,  to  stop  them  in  transitu  could  not 
be  doubted ;  but,  as  he  had  never  had  any  transactions  with  Lehman, 
Abrahams  &  Co.,  and  had  never  represented  himself  to  them  as  the 
agent  of  the  purchasers ;  and  as  he  had  made  himself  responsible  to 
Walker  Bros.  &  Co.,  and  would  have  received  the  goods  absolutely 
as  his  own  property,  in  his  own  right,  if  they  had  not  been  inter- 
cepted, then  it  becomes  a  grave  question  whether  or  not  the  right 
of  stoppage  in  transitu  ever  existed  at  all;  or,  if  it  existed,  whether 
it  should  not  be  considered  as  existing  in  Walker  Bros.  &  Co.,  the 
real  vendors  to  Freed,  upon  his  insolvency,  if  it  had  occurred.  It 
was  proper  to  bring  before  the  court  all  the  facts  showing  the  ac- 

12  Part  of  the  opinion  is  omitted. 


502  RIGHTS   OP    UNPAID    SELLER    AGAINST   THE   GOODS  (Cll.  5 

tual  status  or  condition  of  things,  that  it  might  determine  the  rights 
of  the  parties,  within  the  scope  to  which  the  doctrine  of  stoppage 
in  transitu  extends.  To  such  cases  the  prohibition  against  showing 
res  inter  alios  acta  does  not  always  apply. 

The  true  state  of  the  case,  as  developed  by  the  record,  is  simply 
this:  Lehman,  Abrahams  &  Co.,  upon  the  request  of  Walker  Bros. 
&  Co.,  and  taking  them  as  paymasters,  shipped  goods  to  Freed,  at  a 
point  distant  from  the  business  place  of  either.  It  was  never  con- 
templated, from  anything  that  appears,  that  the  goods  were  intended 
to  reach  Walker  Bros.  &  Co.,  or  their  agents,  or  to  come  into  their 
possession.  The  fact  is,  they  were  not ;  and  there  is  nothing  from 
which  the  shippers  might  fairly  have  presumed  an  intention  on  the 
part  of  Walker  Bros.  &  Co.  to  take  control  of  them  at  their  destina- 
tion, or  retain  any  property  in  them.  Freed  remains  solvent.  Walker 
Bros.  &  Co.  became  insolvent,  and  the  goods  were  redelivered,  by 
the  carrier,  to  Lehman,  Abrahams  &  Co.,  before  they  came  to  Freed's 
possession. 

Is  the  carrier  responsible  to  Freed  for  that?  The  goods  became 
I  his  property,  on  consignment,  absolutely  and  against  all  the  world, 
[subject  only  to  the  carrier's  lien  for  freights;  which,  under  the  cir- 
cumstances, it  would  have  been  idle  to  tender;  and  any  right  of 
stoppage  in  transitu  which  might  exist.  Had  Lehman,  Abrahams  & 
Co.,  that  right?  If  not,  the  action  of  the  court  is  correct.  If  they 
had,  it  must  be  reversed. 

In  the  present  condition  of  commerce,  it  is  not  uncommon,  as  in 
this  case,  for  purchasers  to  direct  their  vendors  to  consign  the  arti- 
cles to  customers  of  the  former,  with  whom  the  shippers  have  no 
privity  whatever. 

The  distinction  between  vendor  and  consignor  and  vendee  and 
consignee,  sometimes  lost  sight  of  in  the  old  cases,  has  thus  become 
a  matter  of  vast  importance,  in  these  triangular  transactions ;  and, 
there  being  only  one  transit,  it  is  a  weighty  matter  to  determine  who, 
during  that  transit,  has  the  right  of  stoppage,  and  upon  whose  in- 
solvency; whether,  in  this  case,  it  would  have  been  in  Walker  Bros. 
&  Co.,  or  in  Lehman,  Abrahams  &  Co.,  on  the  insolvency  of  the  con- 
signee, Freed,  if  in  either.  It  could  not  have  been  in  both ;  for  that 
would  produce  an  unseemly  conflict.  If  in  Lehman,  Abrahams  & 
Co.,  the  contingency  has  not  arisen;  for  Freed  is  not  insolvent.  If 
in  Walker  Bros.  &  Co.,  upon  what  principle  can  it,  on  their  insolven- 
cy, arise  in  favor  of  the  New  Orleans  consignors,  against  the  solvent 
[vendee  of  Walker  Bros.  &  Co.?  If  in  neither,  in  case  of  Freed's  in- 
solvency, but  only  in  Lehman,  Abrahams  &  Co.,  in  the  contingency 
of  the  insolvency  of  Walker  Bros.  &  Co.,  then  we  have  the  case  pre- 
sented of  a  solvent  consignee,  ready  and  willing  to  pay  for  his  goods, 
subject  to  have  them  taken  upon  the  default  of  a  party  for  whom 
he  is  not  liable,  and  whose  actions  he  cannot  control.  If  more  at- 
tention had  been  paid  in  the  discussions,  to  the  distinction  between 


Sec.  2)  STOPPAGE    IN    TRANSITU  503 

consignee  and  vendee,  and  consignor  and  vendor,  the  decisions  would 
have  cast,  on  this  point,  more  hght  than  we  now  have. 

A  review  of  the  authorities  shows  that  the  right  has  never  been 
applied  in  cases  where  the  consignor  claiming  it  has  not  been  the 
vendor,  and  the  consignee  (upon  whose  insolvency  it  arises)  the  pur- 
chaser and  debtor.  Lord  Chancellor  Baron  Eyre  remarked,  in  Kin- 
loch  et  al.  V.  Craig,  in  1790  (3  Term  Rep.  787),  that  the  right  never 
occurred,  but  as  between  vendor  and  vendee. 

It  will  simplify  the  matter  to  bear  in  mind  when  the  terms  "con- 
signor" and  "consignee"  are  used,  that  by  the  former  is  meant  a 
vendor  who  ships,  and  by  the  latter,  a  purchaser  to  whom  they  have 
been  sent.  It  is  the  real  interest  on  one  side  and  liability  on  the 
other,  which  gives  the  right;  not  the  technical  designation  of  the 
parties  in  the  bill  of  lading.  See  notes  to  case  of  Lickbarrow  v. 
Mason,  Smith's  Leading  Cases,  vol.  1,  p.  901. 

It  is  equally  clear,  from  all  the  cases,  that  the  right  has  never 
been  exercised,  save  upon  the  transit  of  the  goods  from  a  vendor  to 
the  purchaser  from  him. 

Freed  bought  the  goods  from  Walker  Bros.  &  Co.  They  were 
his  vendors  and  to  them  only  was  he  liable.  There  can  be  no  doubt 
that  if  the  goods  had  taken  their  natural  course,  and  been  shipped 
by  the  original  owners  to  Walker  Bros.  &  Co.,  their  vendees,  the 
right  of  stoppage  would  have  attached  against  the  latter,  upon  their 
insolvency;  and  the  goods  might  have  been  reclaimed  during  that 
transit.  But  if  they  had  reached  Walker  Bros.  &  Co.,  and  been  by 
them  reshipped  to  Freed,  at  Dardanelle,  it  is  equally  clear  that  the 
original  vendors  would,  on  that  transit,  have  had  no  right  of  stop- 
page, in  any  event;  but  it  would  have  been  in  Walker  Bros.  &  Co.. 
upon  the  contingency  of  Freed's  insolvency.  Quite  as  clearly.  Freed 
never  contemplated,  nor  can  be  presumed  to  have  assented  to  any 
other  or  different  right  of  stoppage  of  the  goods,  than  in  case  of 
his  own  insolvency,  on  the  transit  from  his  vendors  to  himself. 

Neither  transit  was  used.  By  agreement  between  Walker  Bros. 
&  Co.  and  the  original  vendors,  another  was  adopted,  which  con- 
templated that  the  goods  should  come  to  the  possession  of  the  vendee 
of  Walker  Bros.  &  Co.,  without  ever  reaching  Walker  Bros.  &  Co., 
at  all.  This  was  before  any  shipment,  and  before  Lehman,  Abra- 
hams &  Co.  had  parted  with  possession.  It  is  not  like  a  sale  by  a 
purchaser  of  goods  on  their  transit  to  himself;  because,  when  the 
vendor  contemplates  a  transit  to  his  purchaser,  and  ships  accord- 
ingly, he  cannot  be  defeated  of  his  right  by  the  conduct  of  the  pur- 
chaser during  the  transit,  without  his  assent,  either  express,  or  im- 
plied, in  case  of  the  assignment  of  the  bill  of  lading.  Here  he  as- 
sents to  a  different  destination  before  parting  with  his  property; 
and  if  he  thereby  loses  his  right  of  stoppage,  it  is  his  voluntary  act. 

A  case  very  nearly  in  point,  as  to  the  rights  of  parties  in  this 
case,  is  that  of  Feise  et  al.  v.  Wray,  3  East,  93.     Browne,  a  London 


504  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

trader  ordered  of  Fritzing,  a  Hamburg  merchant  a  quantity  of  bees- 
wax. Not  having  it,  Fritzing  procured  the  wax  from  another  mer- 
chant, a  stranger  to  Browne,  (having,  with  him,  no  privity  of  con- 
tract), and  shipped  it  to  Browne  upon  the  latter's  account  and  risk, 
drawing  bills  upon  him  for  the  purchase  money.  Upon  the  in- 
solvency of  Browne,  Fritzing,  by  his  agent,  stopped  the  goods  in 
transitu.      The  assignees   in  bankruptcy  of  Browne,  brought  trover. 

In  his  opinion,  Mr.  J.  Grose  remarked,  after  stating  the  prom- 
inent facts :  "There  was  no  privity  between  Browne  and  the  mer- 
chant of  w^hom  the  wax  was  purchased."  "What  is  this,  then,  but 
the  plain  and  common  case  of  the  consignor  of  goods,  who  has  not 
received  payment  for  them,  stopping  them  in  transitu,  before  they 
get  to  the  hands  of  the  consignee?  It  is  said  that  no  such  right  ex- 
ists in  the  case  of  a  factor  against  his  principal.  If  this  were  a 
case  of  factor  and  principal,  merely,  I  should  find  great  difficulty 
in  saying  that  it  did.  But  here,  Fritzing  may  in  reality  be  consid- 
ered as  the  vendor;  for  the  name  of  the  original  owner  was  never 
made  known  to  the  bankrupt,  but  the  goods  were  purchased  and 
the  bills  drawn  in  Fritzing's  own  name;  and  therefore  he  stands  in 
the  relation  of  vendor  as  to  Browne." 

Lawrence,  J.,  alluded  to  the  argument  that  the  right  of  stoppage 
applied  solely  to  the  case  of  vendor  and  vendee ;  from  which  it  was 
contended  that  Browne  must  be  considered  as  the  principal  for 
whom  the  goods  were  originally  bought,  and  that  Fritzing  was  only 
the  factor,  or  agent;  the  Hamburg  merchant,  furnishing  the  bees- 
wax, being,  in  fact,  the  vendor  of  the  bankrupt ;  and  that  there 
was  no  right  of  stoppage  in-  Fritzing.  He  says :  "If  that  were  so, 
it  would  nearly  put  an  end  to  the  application  of  that  law  in  this 
country;  for  I  believe  it  happens,  for  the  most  part,  that  orders 
come  to  merchants  here  from  their  correspondents  abroad,  to  pur- 
chase and  ship  certain  merchandise  to  them.  The  merchants  here, 
upon  the  authority  of  those  orders,  obtain  the  goods  from  those 
whom  they  deal  with ;  and  they  charge  a  commission  to  their  cor- 
respondents abroad,  upon  the  price  of  the  commodity  thus  obtained. 
It  never  was  doubted,  but  that  the  merchant  here,  if  he  heard  of 
the  failure  of  his  correspondent  abroad,  might  stop  the  goods  in 
transitu.  But,  at  any  rate,  this  is  a  case  between  vendor  and  ven- 
dee; for  there  was  no  privity  between  the  original  owner  of  the 
wax  and  the  bankrupt;  but  the  property  may  be  considered  as  hav- 
ing been  first  purchased  by  Fritzing,  and  again  sold  to  Browne,  at 
the  first  price,  with  the  addition  of  his  commission  upon  it.  He 
then  became  the  vendor,  as  to  Browne,  and  consequently  had  a  right 
to  stop  the  goods  in  transitu." 

Le  Blanc,  J.,  puts  the  case  in  this  wise :  "The  situation  of  Fritz- 
ing was  that  of  being  employed  by  Browne  to  purchase  the  goods 
abroad,  and  to  send  them  to  him  here.  For  the  purpose,  then,  of 
stopping  the  goods  in  transitu,  they  stood  in  the  relative  situation 


Sec.  2)  STOPPAGE  IN  TRANSITU  505 

of  vendor  and  vendee;  though,  perhaps,  not  so  as  for  all  purposes. 
Fritzing  pledged  his  own  credit  in  the  purchase  of  the  goods  from 
the  original  owners ;  and  Browne  could  not  be  called  upon  for  the 
value  by  the  original  owners,  unless  the  goods  came  to  his  hands 
and  he  had  not  paid  or  accounted  for  the  value  of  them  to  Fritz- 
ing, with  whom  he  dealt.  Then,  clearly,  Fritzing  had  a  right  to 
stop  them  in  transitu."     And  so  all  the  Justices  agreed. 

I  have  cited  the  different  expressions  of  the  justices  in  that  case, 
in  order  to  show  the  true  grounds  of  their  conclusion,  and  that  the 
differences  in  the  facts  between  that  case  and  this,  would  not  have 
been  considered  material.  There  the  original  vendor  was  not  ad- 
vised of  the  name  of  the  ultimate  purchaser,  for  whom  the  goods 
were  intended,  but  that  is  mentioned  only  as  conclusive  proof  of 
want  of  privity  of  contract,  and  it  was  upon  this  want  of  privity 
between  the  original  vendor  and  ultimate  purchaser,  that  the  right 
of  stoppage  in  transitu  was  to  be  in  Fritzing,  the  immediate  vendor 
of  Browne.  In  the  case  in  judgment,  the  want  of  privity  between 
Lehman,  Abrahams  &  Co.  and  Freed,  is  even  more  marked  than  if 
they  had  not  known  Freed's  name. 

The  goods  were  sold  on  the  order  and  sole  credit  of  Walker  Bros. 
&  Co. ;  the  bills  made  out  in  their  name  and  at  their  request,  sent 
to  them  with  the  bills  of  lading. 

The  vendors  need  not  have  inquired  nor  known  anything  of  Freed. 
He  was  nothing  to  them,  nor  they  to  him.  The  goods  were  put  in 
a  carrier's  hands  directed  to  him,  simply  as  a  mode  of  disposition 
of  them,  directed  by  the  purchasers. 

In  the  American  notes  to  Smith's  leading  cases  (ubi  supra)  it  is 
said :  "It  is  not  necessary,  however,  in  order  to  support  the  right 
of  stoppage  in  transitu,  that  the  consignor  should  be  the  original 
owner  of  the  goods,  or  have  purchased  them  on  his  own  account. 
Although  acting  as  an  agent  for  a  commission,  and  with  the  view 
of  paying  for  them  ultimately,  with  funds  derived  from  the  con- 
signee, still,  if  he  have  obtained  them  on  his  own  risk  and  credit, 
he  will  be  entitled  to  stop  them  in  transitu,  on  the  insolvency  of  the 
latter,"  citing  American  cases,  and  also  Jenkyns  v.  Usborne,  7  Man. 
&  G.,  678. 

In  view  of  these  principles,  I  think  it  plain  that  if  Freed  had,  him- 
self, become  bankrupt  upon  the  transit  of  the  goods  from  New  Or- 
leans to  Dardanelle,  there  would  have  been  no  right  of  stoppage  in 
Lehman,  Abrahams  &  Co.,  and  as  there  would  be  in  Walker  Bros. 
&  Co.,  notwithstanding  the  goods  had  been  shipped  from  New  Or- 
leans, they  being  the  true  owners  and  vendors  as  regards  Freed, 
we  may  safely  take  this  standpoint,  and  consider,  from  it,  whether 
or  not  the  former  firm,  by  agreeing  to  consign  upon  a  transit,  bur- 
dened with  a  right  of  stoppage  in  behalf  of  Walker  Bros.  &  Co.  up- 
on one  contingency,  can  claim  for  themselves,  a  right  of  stoppage  in 
another;    to-wit :    the   insolvency   of    Walker    Bros.   &   Co.      I    have 


50G  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

never  heard  of  any  case  which  held  that  the  same  goods,  or  the  same 
transit  might  be  subjected  to  two  conflicting  rights  of  stoppage  upon 
different  contingencies.  I  think  it  would  result  that  no  right  of 
stoppage  as  to  these  goods,  remained  in  Lehman,  Abrahams  &  Co., 
in  any  event. 

Although  the  contingency  upon  which  they  claim  that  their  right 
arises  is  the  insolvency  of  Walker  Bros.  &  Co.,  it  is  not  immediately 
against  them,  or  to  prevent  the  goods  reaching  them,  that  its  exer- 
cise is  attempted.  It  is  to  prevent  the  goods  from  reaching  Freed, 
who  does  not  stand  in  the  position  of  a  purchaser,  during  transit, 
but  one  who  has  been  accepted  by  Lehman,  Abrahams  &  Co.  be- 
fore shipment,  as  the  person  entitled  to  receive  them,  as  owner, 
and  not  as  their  vendee.  There  is  nothing  in  the  record  to  bring  this 
case  within  the  class  where  the  purchaser  designates  a  place  of  de- 
livery different  from  his  own  place  of  business,  for  if  to  be  delivered 
for  him,  or  to  his  use,  at  any  named  place,  the  right  of  stoppage 
remains  until  he  receives  them. 

Even  upon  the  supposition  that  Freed  has  not  paid  Walker  Bros. 
k  Co.  for  the  goods,  and  might  defend  a  suit  against  him  by  plead- 
ing this  stoppage — a  point  not  necessary  to  decide — this  would  then 
resolve  itself  into  an  effort  on  the  part  of  Lehman,  Abrahams  & 
Co.  to  secure  a  preference  over  other  creditors  of  Walker  Bros.  & 
Co.  by  diverting  to  themselves,  the  value  in  goods,  of  so  much  of 
the  assets  of  the  latter  firm  as  consists  of  Freed's  debt.  If  they 
had  such  right  to  save  themselves  upon  a  plank  of  the  shipwreck, 
there  was  certainly  a  counter  right  on  the  part  of  Freed  to  receive 
his  goods  and  pay  for  therh  to  whoever  might  be  entitled.  He  is 
solvent,  and  may,  in  the  absence  of  proof  to  the  contrary,  be  con- 
sidered willing  to  pay  for  the  goods  in  full.  I  think  it  would  be 
difficult,  amongst  all  the  cases,  to  find  one  where  the  right  of  stop- 
page in  transitu  has  been  used  to  defeat  the  owner  and  consignee 
of  goods  of  their  possession,  without  any  default  of  his  own.  It 
cannot  be  presumed  to  be  a  matter  of  indifference  to  Freed,  whether 
he  shall  take  his  goods  and  pay  for  them,  or  lose  them  and  be  ex- 
cused, and  the  carriei-  had  no  right  to  decide  this  for  him,  and  re- 
store the  goods  to  Lehman,  Abrahams  &  Co.     *     *     * 

Affirmed. 


WHITEHEAD  et  al.  v.  ANDERSON  et  al. 

(Court  of  Exchequer,  1S42.     9  Jilees.  &  W.  518.) 

Parke,  B.  ^^     *     *     *     The  law  is  clearly  settled,  that  the  unpaid 

vendor  has  a  right  to  retake  the  goods  before  they  have  arrived  at 

the   destination  originally   contemplated  by  the  purchaser,   unless    in 

/  the  meantime  they  have  come  to  the  actual  or  constructive  possession 

IS  The  8tatement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  2)  STOPPAGE    IN    TRANSITU  507 

of  the  vendee.  If  the  vendee  take  them  out  of  the  possession  of  the 
carrier  into  his  own  before  their  arrival,  with  or  without  the  consent 
of  the  carrier,  there  seems  to  be  no  doubt  that  the  transit  would  be  at 
end :  though,  in  the  case  of  the  absence  of  the  carrier's  consent,  it 
may  be  a  wrong  to  him,  for  which  he  would  have  a  right  of  action. 
This  is  a  case  of  actual  possession,  which  certainly  did  not  occur  in 
the  present  instance.  A  case  of  constructive  possession  is,  where  the 
carrier  enters  expressly,  or  by  implication,  into  a  new  agreement,  dis- 
tinct from  the  original  contract  for  carriage,  to  hold  the  goods  for 
the  consignee  as  his  agent,  not  for  the  purpose  of  expediting  them  to 
the  place  of  original  destination,  pursuant  to  that  contract,  but  in  a 
new  character,  for  the  purpose  of  custody  on  his  account,  and  sub- 
ject to  some  new  or  further  order  to  be  given  to  him.     *     *     * 


REYNOLDS  v.  BOSTON  &  M.  R.  R. 

(Supreme  Judicial  Court  of  New  Hampshire,  1SG2.     43  N.  H.  580.) 

Bell,  C.  J.  ^*  *  *  *  It  is  insisted  that  the  notice  was  insuffi- 
cient, because  it  was  too  late,  and  because  a  delivery  should  have  been 
demanded  to  the  messenger.  The  goods  had  been  called  for  by  the 
persons  who  claimed  to  be  the  consignees,  the  freight  was  paid  by 
them,  and  a  delivery  check,  as  it  is  called,  was  given  them.  This  was 
merely  a  receipt  for  the  goods  to  be  signed  by  them,  and  left  with  the 
clerk  who  had  charge  of  the  goods,  upon  their  receipt  of  them.  They 
were  not  delivered  to  nor  seen  by  the  claimants.  There  were  other 
things  in  the  way  of  a  delivery,  and  they  were  told  they  would  be 
ready  about  five  o'clock.  If  these  constituted  a  delivery  in  law,  so  as 
to  terminate  the  transitus,  the  notice  given  in  behalf  of  the  plaintifif 
was  too  late. 

It  was  long  held  that  the  right  of  stoppage  in  transitu  could  be  ter 
minated  only  by  an  actual  delivery  of  the  goods  to  the  consignee  or  hi 
agent.  Cross  on  Lien,  370;  James  v.  Griffin,  2  M.  &  W.  623;  Ed- 
wards v.  Brewer,  2  M.  &  W.  375 ;  Ellis  v.  Hunt,  3  T.  R.  404;  2  Kent, 
Com.  545 ;  1  Smith,  L.  C.  907.  The  later  cases  furnish  some  excep- 
tions to  this  rule,  as  where  the  consignee  calls  for  the  goods  and  the 
carrier  agrees  or  consents  that  he  will  hold  them  for  him,  thus  mak- 
ing himself  his  agent  to  keep  the  goods  (Richardson  v.  Goss,  3  B. 
&  P.  127 ;  Scott  V.  Petit,  3  B.  &  P.  469 ;  Molloy  v.  Hay,  3  M.  &  R. 
396;  Rowe  v.  Pickford,  1  Moor.  526;  Allan  v.  Gripper,  2  C.  &  J. 
218) ;  or  where  the  consignee  has  been  in  the  habit  of  using  the  w^are- 
house  of  the  carrier  or  wharfinger  as  his  own  (Tinker  v.  Humphrey, 
4  Bing.  521 ;  Foster  v.  Frampton,  6  B.  &  C.  109) ;  or  where  the  con- 

14  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


508  EIGHTS   OF    UNPAID    SELLER   AGAINST  THE   GOODS  (Ch.  5 

signee  claims  the  goods,  and  the  carrier  wrongfully  refuses  to  de- 
liver them,  so  that  he  makes  himself  liable  for  the  goods  in  trover 
(Bird  V,  Brown,  4  Exch.  786;    Walley  v.  Montgomery,  3  East,  585). 

But  where  the  goods  remain  in  the  actual  possession  of  the  carrier, 
without  fault  on  his  part  (Crawshay  v.  Eades,  4  B.  &  C.  181 ;  Tucker 
V.  Humphrey,  4  Bing.  516;  Hoist  v.  Pownal,  1  Esp.  240;  Lacking- 
ton  V.  Atherton,  8  Scott,  N.  S.  3S) ;  or  in  the  hands  of  a  depositary, 
or  in  the  custom-house  till  the  duties  are  paid  (3*lottram  v.  lieyer,  5 
Denio  [N.  Y.]  629;  Newhall  v.  Vargas,  13  Me.  109,  29  Am.  Dec.  489; 
Northry  v.  Field,  2  Esp.  613) ;  or  until  necessary  papers  are  pro- 
duced (Donath  v.  Broomhead,  7  Pa.  381);  or  while  the  vessel  is  lying 
at  quarantine  (Stoveld  v.  Hughes,  14  East,  308) ;  there  is  no  delivery, 
either  actual  or  constructive.  Goods  cannot  be  said  to  have  arrived 
at  their  final  destination,  so  as  to  defeat  the  vendor's  right  of  stop- 
page, while  they  remain  in  the  hands  of  the  wharfinger  or  carrier  in 
that  character,  provided  he  is  not  the  actual  agent  of  the  consignee 
beyond  his  duty  as  a  mere  wharfinger  or  carrier.  Bertram  v.  Fair- 
brother,  1  M.  &  P.  528;  Jackson  v.  Nichol,  5  Bing.  N.  C.  508;  At- 
kins V.  Colby,  20  N.  H.  156. 

There  is  no  constructive  possession  on  the  part  of  the  vendee,  un- 
less the  relation  in  which  the  carrier  stood  before,  as  a  mere  instru- 
ment of  conveyance  to  an  appointed  place  of  destination,  has  been  al- 
tered by  a  contract  between  the  vendee  and  the  carrier,  that  the  latter 
should  hold  or  keep  the  goods,  as  the  agent  of  the  vendee.  Foster 
V.  Frampton,  6  B.  &  C.  107 ;  Whitehead  v.  Anderson,  9  M.  &  W.  508. 

In  the  present  case  there  •  is  no  evidence  of  any  such  agreement. 
The  consignees  were  in  a  great  hurry,  and  complained  that  the  goods 
were  not  delivered  to  them.  They  asked  no  agreement  to  keep  the 
goods  for  them,  and  no  assent  was  given  to  any  such  agreement,  if 
we  were  to  assume  that  the  agents  had  authority  to  make  any.  The 
delivery  check  was  no  special  agreement,  and  implied  none,  since  it 
was  but  the  usual  mode  of  doing  their  business.  The  case  comes  not 
nearly  up  to  Foster  v.  Frampton,  6  B.  &  C.  107,  where  it  is  said  there 
is  no  proof  of  any  such  contract  (to  keep  the  goods).  A  promise  by 
the  captain  of  the  vessel  to  the  agent  of  the  assignees  is  stated,  but 
it  is  no  more  than  a  promise,  without  a  new  consideration,  to  fulfill 
the  original  contract,  and  deliver  in  due  course  to  the  consignee,  on 
payment  of  freight,  which  leaves  the  captain  in  the  same  situation 
as  before.  After  the  agreement  he  remained  a  mere  agent  for  ex- 
pediting the  cargo  to  its  original  destination. 

A  notice  to  the  carrier  not  to  deliver  the  goods  is  sufficient.  It  is 
not  necessary  that  the  vendor  or  his  agent  should  demand  a  delivery 
of  the  goods  to  himself.  Lett  v.  Cawley,  1  Taunt.  606;  Whitehead 
V.  Anderson,  9  M.  &  W.  518;  Bell  v.  Moss,  5  Whart.  (Pa.)  189. 
*     *     * 

Judgment  on  the  verdict. 


Sec.  2)  STOPPAGE    IN    TRANSITU  509 

O'NEAL  et  al.  v.  DAY. 
(St.    Louis   Court  of   Appeals,    1893.     53   Mo.    App.   139.) 

Rombau£;r,  p.  J.  The  defendant  sheriff  seized  the  goods  in  con- 
troversy by  virtue  of  a  writ  of  attachment,  issued  against  the  prop- 
erty of  the  Springfield  Dry-Goods  Clothing  Company,  at  the  instance 
of  one  of  its  creditors.  The  plaintiffs  thereupon  replevied  the  goods 
from  the  sheriff',  claiming  that  they  sold  the  goods  to  the  attachment 
defendant  on  credit  in  New  York  City,  to  be  delivered  at  Spring- 
field, Missouri ;  that  the  transit  of  the  goods  had  not  terminated  when 
they  were  attached,  and  that  they  exercised  their  right  of  stoppage 
in  transitu  by  taking  them  from  the  sheriff  on  the  writ  of  replevin. 
The  trial  of  the  cause  resulted  in  a  verdict  for  the  plaintiffs,  and  the 
defendant  now  complains  that  this  result  was  brought  about  by  errors 
committed  by  the  court  in  admitting  incompetent  evidence  against 
him,  and  by  erroneous  views  taken  by  the  court  of  the  applicatory 
law,  as  shown  by  its  instructions. 

The  first  point  made  arises  in  this  manner :  The  defendant  claims 
that  the  evidence  admitted  to  show  that  the  goods  were  sold  by  the 
plaintiffs  to  the  attachment  defendant  was  hearsay,  and  should  have 
been  rejected,  and  that,  rejecting  this  evidence,  no  valid  sale  of  the 
goods  by  the  plaintiffs  to  the  attachment  defendant  was  shown.  This 
argument  loses  sight  of  the  fact  that,  if  no  sale  were  shown,  the  de- 
fendant would  have  no  defense  at  all,  as  the  prior  ownership  of  the 
goods  by  the  plaintiffs  is  conceded.  In  that  event,  the  defendant 
would  simply  stand  in  the  position  of  having  levied  a  writ,  directed 
against  a  third  person,  on  the  goods  of  the  plaintiffs  without  any  ex- 
cuse whatever,  and  a  judgment  for  plaintiffs  would  be  a  mere  con- 
clusion of  law  upon  conceded  facts.  The  objection,  therefore,  de- 
serves no  serious  consideration. 

In  order  to  pass  intelligently  on  the  error  complained  of,  touching 
the  misdirection  by  instruction,  a  brief  statement  of  the  evidence  of 
both  parties  is  essential.  Touching  the  following  facts  there  is  no 
controversy:  The  plaintiffs  sold  the  goods  to  the  attachment  defend- 
ant on  credit,  believing  that  it  was  solvent,  but,  when  the  goods  ar- 
rived at  Springfield,  the  attachment  defendant  was  insolvent,  and  the 
plaintiffs,  learning  of  the  fact,  endeavored  to  stop  the  delivery  of  the 
goods  before  their  transit  ended.  The  only  substantial  controversy  be- 
tween the  parties  is  whether  the  transit  had  actually  ended  when  the 
goods  were  attached  by  the  sheriff. 

On  that  question  the  plaintiffs  gave  evidence  tending  to  show  that 
one  Johnson  was  a  private  carrier  or  transfer  man  in  Springfield,  and 
had  a  standing  order  from  the  attachment  defendant  to  bring  all 
goods,  consigned  to  it,  from  the  railroad  depots  to  its  store ;  that 
Johnson  had  similar  orders  from  other  merchants,  in  fact  was  a  trans- 


510  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

f er  man  for  the  public ;  that  he  had  no  special  orders  touching  these 
goods,  but  paid  the  freight  on  them  and  intended  to  take  them  to  the 
attachment  defendant's  store,  simply  because  he  found  them  at  the 
railroad  depot  consigned  to  it;  that  his  custom  was  to  advance  all 
freight  charges,  that  is,  pay  them  to  the  railroad  agent  when  he  took 
the  goods,  and  collect  such  charges  from  the  consignees,  with  his 
own  charges  superadded,  when  he  delivered  the  freight  to  the  con- 
signees; that,  according  to  his  recollection,  he  did  not  take  this  box 
to  the  store,  but  took  another  box  shipped  by  one  Shoninger  to  the 
same  consignee,  and  upon  arrival  at  the  store  was  told  by  the  con- 
signee that  it  would  not  receive  any  more  goods,  and  thereupon  he 
took  the  Shoninger  box  back  to  the  railroad  depot,  and  the  railroad 
agent  returned  the  freight  charges  to  him. 

Part  of  the  evidence  offered  by  the  plaintiffs  tended  to  show  that 
Johnson  took  both  boxes  to  the  store  of  the  attachment  defendant, 
who  refused  to  receive  them  on  account  of  a  recent  fire  in  the  store, 
and  told  Johnson  to  take  them  back  to  the  depot.  There  was  also  some 
evidence  for  the  plaintiffs,  that  the  attachment  defendant  might  have 
refused  to  receive  the  goods  because  their  billing  did  not  correspond 
to  order,  and  that  Johnson  had  no  special  authority  from  it  to  pay 
the  freight  charges  on  these  goods. 

The  defendant  gave  evidence  tending  to  show,  in  addition  to  the 
above  facts,  that  Johnson  had  paid  freight  on  the  above  goods  and 
had  receipted  for  both  parcels  before  they  were  attached;  that  the 
freight  charges  were  afterwards  paid  by  the  attaching  creditors  and 
for  that  reason  were  refunded  to  Johnson ;  that,  when  the  attaching 
creditors  paid  the  freight  charges,  they  did  not  know  that  Johnson 
had  paid  them  already ;  that,  when  the  goods  were  attached,  they  were 
stored  at  the  railroad  warehouse. 

This  being  in  substance  all  the  evidence  bearing  on  the  point  in  is- 
sue, the  court  declared  the  law  as  follows : 

First.  Upon  the  request  of  the  plaintiff's :  "That,  before  a  delivery 
to  an  agent  can  be  held  to  be  a  delivery  to  the  buyer,  such  delivery 
must  be  to  some  one  authorized  to  act  in  reference  to  the  goods,  other- 
wise than  as  a  forwarder  for  the  buyer,  and  that,  if  you  find  from  the 
evidence  in  this  case  that  M.  AI.  Johnson  was  engaged  in  the  trans- 
fer business  in  Springfield,  Missouri,  and  was  not  in  the  employ  of 
the  said  Springfield  Dry-Goods  &  Clothing  Company,  and  that  the 
railroad  companies  doing  business  in  Springfield,  Alissouri,  and  having 
depots  for  the  reception  and  delivery  of  goods,  were  instructed  by 
said  Springfield  Dry-Goods  &  Clothing  Company  to  let  Johnson  have 
their  freight,  and  he  was  to  receive  the  goods  to  haul  or  transfer  the 
same  to  said  Springfield  Dry-Goods  &  Clothing  Company's  place  of 
business,  and  had  no  other  authority,  then  a  delivery  of  said  goods 
to  Johnson  was  not  a  delivery  to  the  said  Springfield  Dry-Goods  & 
Clothing  Company." 


Sec.  2)  STOPPAGE    IN    TPvANSITU  511 

Second.  Upon  the  defendant's  request :  "The  court  declared  the 
law  to  be  that,  if  the  court  sitting  as  a  jury  finds  from  the  evidence 
that  plaintiff  shipped  the  goods  in  question  from  New  York,  con- 
signed to  the  Springfield  Dry-Goods  &  Clothing  Company  at  Spring- 
field, Missouri,  and,  after  their  arrival  at  the  Phelps  Avenue  depot, 
the  consignee  by  its  agent  received  the  same  and  paid  the  freight, 
then  hauled  them  to  the  storehouse  or  salesroom  of  said  consignee, 
and  the  consignee  directed  their  agents  to  return  them  to  the  depot, 
because  they  were  not  then  in  condition  to  receive  them  on  ac- 
count of  a  recent  fire,  having  no  place  to  put  them,  and  they  were 
thus  and  for  this  reason  returned  to  said  depot,  and  there  received 
and  held  by  the  depot  or  railroad  agent  for  the  consignee,  and  while 
so  held  were  attached  in  the  suit  of  Hargadine  &  ■McKittrick  Dry- 
Goods  Company,  then  the  issues  must  be  found  for  the  defendant." 

Third.  Of  its  own  motion :  "If  the  court  finds  from  the  evidence 
that  the  goods  in  question  were  consigned  by  the  plaintiff  to  the 
Springfield  Dry-Goods  &  Clothing  Company  at  Springfield,  Missouri, 
and  that,  after  their  arrival  at  the  railroad  depot  at  Springfield,  they 
were  receipted  for  and  the  freight  paid  by  the  consignee  or  its  agent, 
the  verdict  must  be  for  the  defendant.  But,  in  order  to  constitute  an 
agent  as  above  specified,  the  agency  must  be  for  some  purpose  other 
than  forwarding  goods  to  consignee's  actual  possession." 

The"  law  governing  the  vendor's  right  to  stop  the  delivery  of  the 
goods  while  in  transit  is  very  simple,  but  its  application  to  particular 
facts  is  often  difficult;  nor  can  the  law  as  declared  by  the  courts  in 
individual  cases  be  understood,  unless  the  circumstances  to  which  it 
is  applied  are  critically  examined.  It  may  be  stated  as  a  general  prop- 
osition that  the  right  of  the  unpaid  vendor  to  stop  goods  in  transitu 
upon  the  bankruptcy  or  insolvency  of  the  vendee,  is  not  defeated  by 
the  mere  arrival  of  the  goods  at  their  destination.  The  transitus  isl 
not  at  an  end  until  they  have  come  to  the  vendee's  actual  possession! 
or  his  constructive  possession  by  a  delivery  to  his  agent.  If  in  the 
case  at  bar  Johnson,  the  local  carrier,  was  the  agent  of  the  attachment 
debtor,  with  full  authority  to  receive  and  receipt  for  the  goods,  then 
upon  the  goods  being  delivered  by  the  common  carrier  to  Johnson, 
and  upon  his  receipting  for  them,  the  transit  was  at  an  end.  There 
is  no  pretense  that  the  goods  Avere  to  be  delivered  by  the  common  car- 
rier at  the  store,  or  at  any  other  place  but  its  depot,  nor  is  there  any 
pretense  that  Johnson,  in  receiving  and  receipting  for  the  goods,  acted 
as  agent  of  the  common  carrier. 

In  White  v.  Mitchell,  38  Mich.  390,  and  in  Inslee  v.  Lane,  57  N.  H. 
454,  where  a  delivery  to  a  local  carrier  under  similar  circumstances 
was  held  not  to  terminate  the  transit,  the  vendee  had  absconded  be- 
fore the  arrival  of  the  goods,  and  it  was  held  that  his  absconding  at 
once  put  an  end  to  the  local  carrier's  authority  to  receipt  for  him.  In 
Alason  v.  Wilson,  43  Ark.   174,  the  vendee  had  notified   the  vendor 


512  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

before  the  arrival  of  the  goods  that  he  would  not  receive  them  on  ac- 
count of  insolvency,  which  was  held  to  terminate  the  authority  of  a 
local  carrier  to  receive  them  for  the  vendee  under  a  general  authority 
to  receive  and  receipt.  The  case  of  Macon  &  Western  Ry.  Co.  v. 
Meador  Bros.,  65  Ga.  705,  was  decided  under  a  clause  of  the  Georgia 
code,  which  provides  that  the  right  of  stoppage  in  transitu  continues 
until  the  vendee  obtains  actual  possession  of  the  goods. 

Neither  of  these  cases  cited  by  the  respondent  in  support  of  his  in- 
struction has  a  tendency  to  vindicate  the  correctness  of  that  instruc- 
tion, and  we  must  conclude  that  that  instruction  under  the  evidence 
in  this  case  was  incorrect  and  misleading,  as  was  also  the  last  sen- 
tence in  the  instruction  given  by  the  court  of  its  own  motion. 

If  Johnson,  as  the  evidence  tends  to  show,  was  the  agent  of  the  at- 
tachment defendant  having  general  authority  to  receive  and  receipt 
for  its  goods,  which  arrived  at  the  depots  in  Springfield,  where  such 
goods  were  deliverable,  then  Johnson's  receiving  the  goods  and  receipt- 
ing for  them  was  prima  facie  a  termination  of  their  transit.  If  such 
general  authority  did  not  extend  to  this  particular  case,  the  onus  of 
showing  that  fact  rested  with  the  plaintiffs.  The  plaintiff's  might  have 
shown  that  fact,  either  by  showing  that  the  attachment  defendant  re- 
fused to  receive  the  goods  owing  to  its  insolvency,  or  that  it  refused 
to  receive  the  goods  because  they  were  not  properly  billed,  and  in 
either  event  such  evidence  w^ould  have  tended  to  show  that  the  transit 
had  not  ended.  But  a  refusal  to  receive  the  goods  temporarily,  on 
account  of  any  inconvenience  to  place  them  in  the  store,  had  no  tend- 
ency to  show  that  their  transit  had  not  ended.  Their  return  to  the 
common  carrier  under  such  circumstances  left  them  in  the  hands  of 
the  carrier  as  a  warehouseman  after  the  termination  of  the  transit 
and  subject  to  the  dominion  of  the  attachment  debtor. 

For  error  in  the  plaintiff''s  instruction  the  judgment  must  be  re- 
versed, and  the  cause  remanded.    All  the  judges  concur. 


JOHNSON  V.  EVELETH. 

(Supreme  Judicial  Court  of  Maine,  1S99.     93  Me.  306,  45  Atl.  35,  48  L.  R.  A.  50.) 

Savage,  J.  ^^  This  case  comes  up  on  report.  We  think  the  evidence 
shows  the  following  facts:  On  Alarch  22,  1898,  one  Edward  Wave 
entered  into  a  contract  of  bargain  and  sale  with  the  defendant  for 
the  purchase  of  about  1,000,000  feet  of  logs,  numbering  7,663  sticks, 
then  lying  in  Spencer  Pond,  above  Moosehead  Lake.  It  was  agreed 
that  the  logs  should  be  delivered  by  the  defendant  "over  the  dam" 
at  the  east  outlet  of  Moosehead  Lake  into  Kennebec  waters.  From 
that  point  they  were  to  be  driven  down  the  Kennebec  river  by  the 

15  The  statement  of  facts  and  part  of  tlie  opinion  are  omitted. 


Sec.  2)  STOPPAGE    IN    TRANSITU  513 

Kennebec  Log-Driving  Company.  Ware  had  booms  in  Fairfield 
and  Winslow,  and  a  mill  at  the  latter  place.  The  logs  were  bought 
by  Ware  for  the  purpose  of  being  manufactured  into  lumber  at  his 
mill  in  Winslow.  On  May  25,  1898,  Ware  assigned  to  the  plain- 
tiff for  the  benefit  of  his  creditors,  under  the  provisions  of  the  in- 
solvent law.  Laws  1897,  c.  325,  §  16.  He  was,  and  for  a  long  time 
had  been,  hopelessly  insolvent.  In  the  meantime  the  defendant  had 
caused  a  large  portion  of  the  logs  to  be  delivered  "over  the  dam" 
at  the  east  outlet,  and  they  were  being  driven  down  the  Kennebec 
river  towards  Ware's  booms  and  mill.  Some  scattering  logs  had 
already  reached  Ware's  mill,  and  had  been  sawed.  They  had  drifted 
down  the  river,  without  the  necessity  of  being  driven.  But  the  drive 
proper  did  not  reach  Fairfield  or  Winslow  until  the  last  of  August, 
1898.  When  the  drive  reached  Shawmut,  above  the  Fairfield  boom, 
August  22d,  the  defendant  took  from  the  river  all  the  logs  he  had 
sold  to  Ware  which  then  remained  in  the  drive,  numbering  6,815 
sticks,  and  surveying  808,032  feet.  And  it  is  for  this  taking  and  al- 
leged conversion  that  the  plaintiff'  has  brought  this  action  of  trover. 
Ware  agreed  to  give  four  notes  for  the  price  of  the  logs,  maturing 
at  different  times.  At  the  time  of  his  assignment  he  had  given  one 
note  to  the  defendant,  which  was  subsequently  protested  for  non- 
payment, and  then  tendered  back  by  the  defendant  to  the  plaintiff. 
The  other  three  notes  he  never  gave. 

The  defendant  asserts  several  grounds  of  defense,  only  one  of 
which  do  we  think  it  necessary  to  consider.  He  says  he  took  the 
logs  from  the  river  in  the  exercise  of  the  right  of  stoppage  in  tran-f 
situ.  He  claims  that  the  log-driving  company  was  a  carrier.  Hel 
says  he  sold  the  logs  on  credit,  and  that  while  they  were  in  transitj 
to  their  ultimate  destination  in  Winslow,  and  were  in  the  possession 
of  the  log-driving  company  as  a  carrier,  the  purchaser  became  in- 
solvent. And  this  fact,  he  says,  gave  him  the  right  to  resume  the 
possession  of  the  logs  at  any  time  before  they  came  into  the  actual 
possession  of  Ware,  or  came  to  their  destination  in  Winslow. 

In  reply  the  plaintiff  says :  (1)  That  the  log-driving  company  was 
not  a  carrier,  or  middleman,  in  such  a  sense  as  gave  it  possession  or 
control  of  the  logs;  that  the  river  was  the  real  carrier;  that  the 
company  provided  no  means  of  conveyance  or  motive  power,  but  sim- 
ply facilitated  the  floating  of  logs  down  the  river  by  breaking  jams 
and  otherwise,  and  hence  that,  after  the  logs  passed  out  of  the  pos- 
session of  the  defendant  by  being  turned  "over  the  dam,"  they  must 
have  been,  constructively  at  least,  in  the  possession  of  Ware,  while 
floating  upon  the  river;  and,  furthermore,  that  in  any  event  the  log- 
driving  company  was  really  only  an  association  of  log  owners,  of 
whom  Ware  was  one,  and  that  a  delivery  of  the  logs  to  the  company 
was,  in  eft'ect,  a  delivery  into  the  possession  of  Ware.  (2)  That  by 
the  terms  of  the  contract  between  Ware  and  the  defendant  the  "des- 
WooDW.  Sales — 33 


514  RIGHTS   OF    rXPAID    SELLER    AGAIXST  THE   GOODS  (Cll.  5 

tination"  of  the  logs  was  "over  the  dam"  at  the  east  outlet,  and  that 
when  they  were  so  delivered  the  "transitus"  was  at  an  end.  And 
(3)  that  the  facts  that  some  of  the  logs  had  floated  down  the  river 
to  \\''are's  mill,  and  had  been  received  and  sawed  by  him,  constituted 
a  constructive  delivery  of  the  whole  mass  into  his  possession. 

[The  court  here  considered  the  character,  duties,  and  method  of 
operation  of  the  log-driving  company,  and  concluded  that  possession 
by  the  company  was  not  possession  by  Ware.] 

The  next  question  in  this  connection  is,  may  the  right  of  stoppage 
in  transitu  attach  to  logs  being  driven  as  these  were  ?  We  have  no 
doubt  that  it  may.  It  may  be  conceded  that  the  log-driving  company 
is  not  a  common  carrier,  although  in  some  respects  its  duties  are 
analogous  to  those  of  common  carriers  (see  Mann  v.  Booming  Co.. 
46  Mich.  38,  8  N.  W.  550,  41  Am.  Rep.  141,  where  the  distinction 
is  pointed  out) ;  but  that  is  not  decisive.  When  a  vendor  sends 
goods  sold  to  the  place  of  destination  by  private  conveyance,  the 
right  of  stoppage  in  transitu  exists  the  same  as  if  they  are  sent  by 
common  carrier.  The  vital  question  is,  are  they  in  transit  between 
the  vendor  and  the  vendee?  The  right  of  stoppage  in  transitu  is 
merely  an  extension  of  the  lien  for  the  price  which  the  vendor  has 
after  contract  of  sale  and  before  delivery  of  goods  sold  on  credit. 
The  term  itself  implies  that  the  goods  are  in  transit,  and  that  they 
have  not  come  into  the  possession  of  the  vendee.  It  permits  the 
vendor  to  resume  possession  before  the  goods  sold  have  come  into 
the  vendee's  possession,  if  the  latter  has  become  insolvent.  Whether 
they  are  in  the  possession  of  a  carrier,  strictly  so  called,  while  in 
transit,  or  whether  they  are '  in  possession  of  a  "middleman,"  is  im- 
material.    2  Kent,  Comm.  702. 

In  this  case  the  logs  were  certainly  in  transit  between  the  dam  at 
the  east  outlet  and  Ware's  mill.  They  were  moving  down  the  river. 
They  were  kept  moving  by  the  agency  of  the  log-driving  company. 
The  company  broke  the  jams,  cleared  the  eddies  and  the  banks  of 
logs,  took  them  wherever  they  became  stranded,  and  drove  in  the 
rear.  The  company  having  assumed  the  duty  of  driving  the  logs, 
no  one  else  had  the  right  to  interfere  with  the  driving.  So  far  as 
a  mass  of  logs  in  a  river  is  susceptible  of  possession,  to  that  extent 
the  log-driving  company  was  in  possession  of  these  logs  for  the  pur- 
pose of  transporting  them.  And  we  think  that  was  sufficient.  It 
certainly  accords  with  the  equitable  principles  out  of  which  the  right 
of  stoppage  in  transitu  has  grown.  Newhall  v.  \'argas,  13  Me.  93, 
29  Am.  Dec.  489.  The  character  of  the  possession  of  the  log-driving 
company  is  only  important  as  it  shows  that  the  logs  had  not  come 
into  the  possession  of  the  vendee,  and  were  still  in  transit. 

But  the  plaintiff  next  contends  that,  so  far  as  this  case  is  concern- 
ed, the  transitus  ended  when  the  logs  were  turned  "over  the  dam" 
at  the  east  outlet,  because,  he  says,  that  was  the  ultimate  destination 
of  the  logs,  within  the  meaning  of  the  contract  of   purchase;    that 


\ 


Sec.  2)  STOPPAGE    IN    TRANSITU  515 

the  defendant's  agreement  was  to  deliver  the  logs  there;  and  that, 
when  the  logs  were  so  delivered,  the  transitus  contemplated  by  the 
contract  was  at  an  end;  and  that  in  any  further  transit  the  right  of 
stoppage  in  transitu  would  not  exist.  This  might  be  true  if  by  any 
fair  construction  of  the  contract,  read  in  the  light  of  surrounding 
conditions  and  circumstances,  we  could  understand  that  the  dam  was 
really  the  contemplated  final  destination  of  the  logs,  or  that  the  logs 
were  to  be  delivered  at  the  "dam,"  and  there  remain  subject  to  fur- 
ther acts  or  directions  of  Ware.     Becker  v.  Hallgarten,  86  N.  Y.  167. 

But  we  cannot  interpret  the  contract  so  narrowly.  We  must  view 
the  situation  as  the  parties  did.  We  cannot  shut  our  eyes  to  the 
fact  that  these  logs,  at  the  time  of  the  contract,  were  above  the 
dam,  and  above  a  portion  of  Moosehead  Lake ;  that  they  were 
bought  to  be  manufactured  in  Ware's  mill  in  Winslow;  that  they 
must  float  or  be  driven  down  the  river  all  the  distance  between  those 
points ;  that  it  was  expected  that  they  would  be  driven  by  the  log- 
driving  company;  that  there  was  no  place  of  deposit  at  the  "dam" 
for  keeping  the  logs,  but  that  the  transit  in  the  lake  above  the  dam 
and  in  the  river  below  was  actually  continuous,  the  dam  being  sim- 
ply the  point  where  the  defendant  ceased  to  drive  and  the  company 
began.  In  view  of  these  circumstances,  should  "over  the  dam"  be 
regarded  as  the  "destination"  of  the  logs?     We  think  not. 

The  question  here  is  not  whether  the  turning  of  the  logs  "over 
the  dam"  was  a  delivery, — such  a  delivery  as  would  have  vested  title 
in  the  vendee,  in  case  delivery  was  necessary.  It  is  not  a  question 
of  title.  We  assume  that  Ware  had  the  title  to  the  logs.  The  de- 
fendant bases  his  right  of  stoppage  in  transitu  upon  that  fact  in 
part.  The  exercise  of  that  particular  right  presupposes  that  the  title 
of  the  goods  is  in  the  vendee;  and,  further,  the  title  remains  in  the 
vendee  even  after  the  exercise  of  the  right.  The  title  is  not  changed. 
Hurd  v.  Bickford,  85  Me.  217,  27  Atl.  107,  35  Am.  St.  Rep.  353. 
The  question  here  is  whether,  by  the  delivery  at  the  dam,  the  logs 
came  into  the  possession  of  the  vendee,  and  so  far  only  as  the  de- 
livery at  the  dam  throws  light  upon  this  question  is  it  material.  The 
distinction,  in  a  word,  is  that  property  sold  may  have  been  delivered 
so  as  to  affect  title,  and  yet  not  have  come  into  the  possession  of  the 
vendee  so  as  to  bar  the  right  of  stoppage  in  transitu. 

An  illustration  of  this  is  found  in  the  common  class  of  contracts 
where  the  vendor  agrees  to  deliver  to  a  carrier  designated  by  ven- 
dee for  shipment  to  vendee's  place  of  business.  A  delivery  to  a  car- 
rier under  such  circumstances  vests  title  in  the  vendee,  and  places 
the  goods  subject  to  his  risk,  but  the  vendor  does  not  lose  his  right 
of  stoppage  in  transitu  while  the  goods  are  in  transit  to  the  vendee. 
Grout  V.  Hill,  4  Gray  (Mass.)  361 ;  Rowley  v.  Bigelow,  12  Pick. 
(Mass.)  307,  23  Am.  Dec.  607 ;  Gibson  v.  Carruthers,  8  Mees.  &  W. 
321.  In  a  case  where  goods  were  delivered  to  the  purchasing  agent 
of  the  vendees  to  be  transmitted  to  the  vendees'  factory  in  another 


516  RIGHTS   OF    UNTAID    SELLER    AGAINST   THE   GOODS  (Cll.  5 

state,  it  was  held  that  tlie  right  of  stoppage  in  transitu  was  not  bar- 
red. The  court  said  that  the  dehvery  of  the  goods  was  to  the  agent, 
not  as  owner,  nor  as  agent  of  the  owners  to  dispose  of  them  in  any 
other  way  than  to  transmit  them  to  the  vendees'  place  of  business, 
and  that  to  take  away  the  right  of  stoppage  in  transitu  there  must 
be  an  absolute  delivery  to  the  agent  for  the  use  of  the  vendees,  and 
it  must  have  been  a  full  and  iinal  delivery,  as  contradistinguished 
from  a  delivery  to  a  person  acting  as  a  carrier  or  forwarding  agent 
to  the  principal.  Aguirre  v.  Parmelee,  22  Conn.  473.  To  terminate 
the  transitus  by  delivery  to  a  middleman,  it  must  be  a  delivery  not 
to  transport,  but  to  keep.  Guilford  v.  Smith,  30  Vt.  49.  See  our 
own  case  of  Newhall  v.  Vargas,  supra.  It  was  held  in  Mohr  v.  Rail- 
road Co.,  106  Mass.  67,  that  the  transitus  is  not  at  an  end  until  the 
goods  have  reached  the  place  contemplated  by  the  contract  between 
the  buyer  and  seller  as  the  place  of  their  destination. 

As  bearing  upon  the  "destination"  of  the  logs,  the  plaintiff,  in 
argument,  suggests  that  under  the  charter  of  the  log-driving  company 
the  owner  of  the  logs  was  required  to  file  with  the  company  a  state- 
ment of  their  destination,  which  was  not  done,  and  also  that  the 
company  does  not  itself  take  logs  from  the  river,  but  the  owners  sep- 
arate them  from  the  general  drive,  and  boom  them,  or  take  them  out, 
at  such  points  as  they  please.  To  these  suggestions,  it  is  a  sufficient 
answer  to  say  that  it  is  clear  that  the  intended  destination  of  these 
logs  was  at  Ware's  mill,  and  that  whatever  the  rights  of  Ware  to 
stop  the  logs,  or  take  them  out  of  the  river,  may  have  been,  he  did 
not  exercise  them.  He  did  not  take  possession  of  the  logs  while  they 
were  in  transit. 

Finally,  the  plaintiff  contends,  inasmuch  as  some  small  portion  of 
the  logs  had  floated  town  to  W'are's  mill,  and  had  been  received  by 
him  before  his  assignment,  that  this  put  him  in  constructive  posses- 
sion of  the  whole  mass,  and  terminated  the  transitus.  We  are  unable 
to  come  to  that  conclusion.  The  surveyor's  bill  shows  that  there  were 
7,663  sticks  in  the  lot  of  logs  purchased.  The  defendant,  when  he 
took  possession,  found  6,815  sticks  in  the  drive.  It  appears  that 
some  had  gone  below  Ware's  mill  to  Hallowell,  and  undoubtedly  some 
sticks  had  been  left  behind  upon  the  banks  or  in  the  eddies  of  the 
river.  But  assuming  that  the  whole  of  the  remaining  848  sticks  had, 
during  the  season,  floated  down  to  or  by  Ware's  mill,  still  we  do  not 
think  that  that  fact  constituted  a  constructive  possession  in  Ware, 
or  the  plaintiff,  of  the  logs  which  had  not  come  down.  It  is  not  like 
the  case  where  a  vendee  has  taken  some  portion  out  of  the  whole 
mass,  which  was  then  susceptible  of  possession,  and  in  which  case 
he  has  thus  obtained  constructive  possession  of  the  whole.  Such  facts 
are  important  sometimes  when  it  is  necessary  to  decide  whether  a 
legal  delivery  has  been  made.  But  here,  as  we  have  said,  it  is  not 
a  question  of  technical  delivery,  but  one  of  actual  possession.  Here 
Ware  took  only  such  scattering,  floating  logs  as  came  to  him.     The 


Sec.  2)  STOPPAGE    IN    TRANSITU  517 

remainder  were  not  in  his  possession.  They  were  still  in  the  pos- 
session of  the  log-driving  company.  They  were  still  being  driven. 
They  were  still  in  actual  transit.  And  we  think  the  vendor  had  the 
right  to  stop  them  before  that  transit  was  ended.  Such  a  conclusion 
gives  effect  to  the  spirit  and  purpose  of  the  law.  Buckley  v.  Furniss, 
17  Wend.  (N.  Y.)  504;  Mohr  v.  Railroad  Co.,  supra. 
Plaintiff  nonsuit. 


DIEM  V.  KOBLITZ  et  al. 

(Supreme  Court  of  Ohio,   1S92.     49  Ohio   St.  41,  29  N.  E.   1124,  34  Am.    St 

Rep.  531.) 

W11.1.IAMS,  C.  J.  ^*  The  contract  of  the  parties,  as  shown  by  the 
pleadings,  was  one  for  the  sale  of  goods  on  credit ;  the  plaintiffs 
agreeing  to  give  their  commercial  paper  for  the  purchase  price,  pay- 
able at  the  times  stipulated.  As  no  time  was  specified  in  the  con- 
tract for  the  delivery  of  the  goods,  the  defendant's  obligation  was  to 
deliver  them  when  the  plaintiffs  gave  their  commercial  paper,  as  they 
agreed  to  do,  or  within  a  reasonable  time.  The  petition  avers  that 
the  plaintiffs  were  at  all  times  ready  to  perform  their  part  of  the  con- 
tract, and  that  they  requested  performance  by  the  defendant,  which 
was  by  him  refused.  The  answer  denies  these  averments,  and  alleges 
that  the  plaintiffs  became  and  were  insolvent,  and  their  commercial 
paper  dishonored;  and  upon  this  information  coming  to  the  defend- 
ant, after  part  of  the  goods  had  been  delivered  to  the  carrier  for  ship- 
ment, he  stopped  them  in  transit,  resumed  possession,  and  afterwards 
resold  them,  with  the  other  goods  included  in  the  contract,  for  the 
same  price  plaintiffs  were  to  pay  for  them.  The  reply  denies  the  in- 
solvency of  the  plaintiffs,  and  avers  that  they  accepted  drafts  drawn 
by  defendant  on  them  for  the  whole  purchase  price  of  the  goods,  pay- 
able in  accordance  with  the  contract. 

The  view  which  the  court  below  took  of  the  case  was  that  the  re- 
sale of  the  goods,  as  alleged  in  the  answer,  was  a  breach  of  the  con- 
tract by  the  defendant,  which  gave  the  plaintiffs,  notwithstanding  their 
insolvency,  an  immediate  right  of  action  against  him  for  damages. 
Hence,  proof  of  the  insolvency  of  the  plaintiffs  was  excluded  as  im- 
material, and  the  case  was  submitted  to  the  jury  as  involving  no  in- 
quiry except  the  amount  of  the  plaintiffs'  damages. 

We  do  not  understand  it  to  be  claimed  that  the  defendant,  upon 
learning  of  the  plaintiffs'  insolvency,  might  not  lawfully  retake  the 
goods  while  they  were  yet  in  the  custody  of  the  carrier,  nor  that  he 
was  bound  to  deliver  any  part  of  the  goods  so  long  as  the  insolvency 
of  the  plaintiffs  continued.     The  claim  is  that  the  right  of  the  vendor 

10  The  statement  of  facts  is  omitted. 


318  EIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

in  such  case  is  simply  to  retain  possession  of  the  property  until  the 
purchase  price  is  paid,  and  therefore  a  resale  by  him  before  the  ex- 
piration of  the  credit  puts  it  out  of  his  power  to  deliver  to  the  first 
vendee,  and  so  constitutes  a  breach  of  the  contract  with  him,  for 
which  he  may,  though  insolvent,  maintain  a  special  action  for  dam- 
ages. Whether  this  claim  is  correct  or  not  is  the  principal  question  in 
the  case. 

The  right  of  stoppage  in  transitu  is  the  right  of  the  vendor  to  re- 
sume possession  of  the  goods  sold,  while  they  are  in  transit  to  the 
vendee,  who  is  insolvent  or  in  embarrassed  circumstances.  Actual  in- 
solvency of  the  vendee  is  not  essential.  It  is  sufficient  if,  before  the 
stoppage  in  transitu,  he  was  either  in  fact  insolvent,  or  had,  by  his 
conduct  in  business,  afforded  the  ordinary,  apparent  evidences  of  in- 
solvency. ^^  Nor  is  the  vendor's  right  abridged  or  in  any  way  affected 
by  the  fact  that  he  has  received  the  vendee's  bills  of  exchange  or 
other  negotiable  securities  for  the  whole  price,  even  though  they  have 
been  negotiated,  and  are  still  outstanding.  It  seems  to  be  well  settled 
that  when  the  right  of  stoppage  in  transitu  is  properly  exercised  the 
effect  is  to  restore  the  vendor  to  precisely  the  same  position  as  if  the 
goods  had  never  left  his  possession.  He  has  the  same  rights  with 
respect  to  the  property,  and  they  may  be  enforced  in  the  same  way. 
His  right  to  intercept  the  goods  before  they  reach  the  hands  of  the 
vendee,  and  his  right  to  withhold  those  still  in  his  possession,  rest 
upon  the  same  just  principle,  that  the  insolvent  vendee  cannot  require 
the  vendor  to  deliver  the  goods  or  perform  the  contract  when  he  him- 
self is  unable  to  pay  for  them  or  perform  the  contract  on  his  part. 

To  require  the  goods  to  be  delivered  to  such  vendee  would  simply 
result  in  the  application  of  the  property  of  one  man  to  the  payment 
of  another  man's  debts.  The  right  of  the  unpaid  vendor  with  re- 
spect to  the  goods  is  sometimes  called  a  "lien;"  and  it  is  a  lien,  in 
the  sense  that  the  vendee,  upon  payment  or  tender  of  the  price,  but 
not  otherwise,  may  recover  them.  But  it  is  something  more  than  a 
mere  common-law  lien,  which  is  only  a  naked  right  of  possession. 
With  the  goods  in  his  possession,  the  vendor  has  a  special  property 
in  them,  which  is  parcel  of  his  original  ownership.  Whether  the  ef- 
fect of  the  stoppage  in  transitu,  or  the  retention  of  the  goods  by  the 
vendor,  on  the  discovery  of  the  vendee's  insolvency,  is  to  rescind  the 
contract,  or  not,  has  been  the  subject  of  much  discussion;  and  some 
authors  say  the  question  is  not  yet  definitely  settled. 

But  the  prevailing  opinion  now  is,  we  believe,  that  the  contract  is 

17  For  definition  of  insolvency,  see  Sales  Act,  §  76  (3).  It  was  held,  in 
Rogers  v.  Thomas.  20  Conn.  53  (1849),  that  if  the  buyer  was  insolvent  at  the 
time  of  the  sale  the  seller  has  no  right  to  stop  the  goods.  This  is  obviously 
just  if  the  seller  knew  of  the  buyer's  insolvency  at  the  time  of  the  sale ;  V>ut 
without  this  qualification  the  inile  is  opposed  to  both  reason  and  authority. 
See  Benedict  v.  Schaettle,  12  Ohio  St.  515  (1861),  and  other  cases  cited  in  Wil- 
liston,  Sales,  §  522. 


Sec.  2)  STOPPAGE  IN  TRANSITU  519 

not  necessarily  rescinded,  unless  the  parties  by  their  conduct  so  treat 
it,  that  conclusion  is  most  favorable  to  the  vendor,  for  whose  protec- 
tion the  doctrine  of  stoppage  in  transitu  was  first  established;  for, 
if  the  exercise  of  the  right  operated  to  rescind  the  contract,  the  ven- 
dor would  be  deprived  of  the  remedy  which  it  is  now  generally  con- 
ceded he  has,  in  a  proper  case,  upon  a  resale  of  the  goods,  to  hold 
the  vendee  or  the  assignee  of  his  estate  for  the  loss  sustained  through 
his  nonperformance  of  the  contract,  or  in  consequence  of  a  fall  in 
the  market  price.  And  as  the  stoppage  does  not  rescind  the  contract 
of  sale,  it  follows  that  the  vendee  or  his  assignee  may  obtain  the 
goods  on  payment  of  the  price,  or,  if  the  vendee  was  able  and  ready 
to  perform  the  contract  on  his  part,  he  may  recover  damages  for  the 
failure  of  the  seller  to  deliver  the  property  according  to  its  terms. 
But  can  the  vendee  maintain  such  action  if  he  is  not  able  to  perform? 
And  does  his  insolvency  at  the  time  fixed  for  the  delivery  of  the  prop- 
erty amount  to  such  inability?  Or,  where  the  sale  is  upon  credit, 
does  a  resale  of  the  property  by  the  vendor  before  the  expiration  of 
the  time  of  the  credit  give  the  insolvent  vendee,  notwithstanding  his 
inability  to  pay  for  the  goods,  a  right  of  action  against  the  vendor  for 
the  difference  between  the  contract  price  and  their  market  value  at 
the  time  of  the  resale? 

As  an  authority  sustaining  the  right  of  the  vendee  to  maintain  such 
an  action  against  his  vendor,  Bloxam  v.  Sanders,  4  Barn.  &  C.  941, 
is  cited,  where  Bailey,  J.,  says :  "If  goods  are  sold  upon  credit,  and 
nothing  is  agreed  upon  as  to  the  time  of  delivering  the  goods,  the 
vendee  is  immediately  entitled  to  the  possession,  and  the  right  of  pos- 
session and  the  right  of  property  vest  at  once  in  him;  but  his  right 
of  possession  is  not  absolute.  It  is  liable  to  be  defeated  if  he  becomes 
insolvent  before  he  obtains  possession.  Whether  default  in  payment 
when  the  credit  expires  will  destroy  his  right  of  possession,  if  he  has 
not  before  that  time  obtained  actual  possession,  and  put  him  in  the 
same  situation  as  if  there  had  been  no  bargain  for  credit,  it  is  not  now 
necessary  to  inquire,  because  this  is  a  case  of  insolvency,  and  in  case 
of  insolvency  the  point  seems  to  be  perfectly  clear.  If  the  seller  has 
dispatched  the  goods  to  the  buyer,  and  insolvency  occurs,  he  has  a 
right,  in  virtue  of  his  original  ownership,  to  stop  them  in  transitu. 
Why?  Because  the  property  is  vested  in  the  buyer,  so  as  to  subject 
him  to  the  risk  of  any  accident;  but  he  has  not  an  indefeasible  right 
to  the  possession,  for  his  insolvency,  without  payment  of  the  price, 
defeats  that  right.  And  if  this  be  the  case  after  he  has  dispatched 
the  goods,  and  whilst  they  are  in  transitu,  a  fortiori  is  it  when  he  has 
never  parted  with  the  goods,  and  when  no  transitus  has  begun.  The 
buyer,  or  those  who  stand  in  his  place,  may  still  obtain  the  right  of 
possession,  if  they  will  pay  or  tender  the  price,  or  they  may  still  act 
upon  the  right  of  property,  if  anything  unwarrantable  is  done  to  that 
right.     If,  for  instance,  the  original  vendor  sells  when  he  ought  not. 


520  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

they  may  bring  a  special  action  against  him  for  the  injury  they  sus- 
tain by  such  wrongful  sale,  and  recover  damages  to  the  extent  of  that 
injury;  but  they  can  maintain  no  action  in  which  right  of  property 
and  right  of  possession  are  both  requisite,  unless  they  have  both  those 
rights." 

Still  the  question  remains,  when  is  the  resale  wrongful?  And  what 
is  necessary  on  the  part  of  the  vendee  to  enable  him  to  maintain  the 
action  for  the  resale  was  not  decided,  nor  does  it  appear  to  have  been 
a  question  in  that  case.  The  action  was  trover,  to  the  maintenance 
of  which  the  right  of  possession  was  essential.  In  Smith's  Leading 
Cases,  (volume  1,  pt.  2,  p.  1199),  in  the  note  to  Lickbarrow  v.  ]\Iason, 
2  Term  R.  63,  it  is  said:  "Supposing  the  contract  of  sale  not  to  be 
rescinded,  it  seems  to  follow  that  the  goods,  while  detained,  remain  at 
the  risk  of  the  vendee,  and  that  the  vendor  can  have  no  right  to  re- 
sell them,  at  all  events  until  the  period  of  credit  is  expired.  After 
that  period,  indeed,  the  refusal  of  the  vendee  or  his  representatives 
to  receive  the  goods  and  pay  the  price  would  probably  be  held  to  en- 
title the  vendor  to  elect  to  rescind  the  contract." 

The  only  authority  cited  in  support  of  the  note  above  quoted  is 
the  case  of  Langfort  v.  Tiler,  Salk.  113,  from  an  examination  of 
which  it  will  be  seen  that  it  does  not  meet  the  question.  The  full 
report  of  the  case,  which  is  very  brief,  is  as  follows : 

"The  defendant,  who  was  administratrix  to  her  late  husband,  used 
to  deal  in  tea  in  his  life-time,  and  bought  four  tubs  of  the  plaintiff 
at  so  much  per  tub,  one  of  which  she  paid  for  md  took  away,  leaving 
£50  in  earnest  for  the  other  three;  and  Holt,  Chief  Justice,  ruled: 
(1)  That  the  husband  was  liable  upon  the  wife's  contract,  because 
they  cohabited.  (2)  That,  notwithstanding  the  earnest,  the  money 
must  be  paid  upon  the  fetching  away  the  goods,  because  no  other  time 
for  payment  is  appointed.  (3)  That  earnest  only  binds  the  bargain, 
and  gives  the  party  a  right  to  demand;  but  then  a  demand  without 
the  payment  of  the  money  is  void.  (4)  That,  after  earnest  given,  the 
vendor  cannot  sell  the  goods  to  another  without  a  default  in  the  ven- 
dee; and  therefore,  if  the  vendee  does  not  come  and  pay  and  take 
the  goods,  the  vendor  ought  to  go  and  request  him;  and  then,  if  he 
does  not  come  and  pay,  and  take  away  the  goods  in  convenient  time, 
the  agreement  is  dissolved,  and  he  is  at  liberty  to  sell  them  to  any  other 
person." 

The  sale,  it  appears,  was  not  on  credit,  nor  was  the  purchaser  in- 
solvent ;  nor  does  the  case  hold  that  the  vendor  would  be  liable  in 
damages  for  a  resale  of  the  goods,  without  a  request  made  of  the 
vendee  to  receive  and  pay  for  them,  if  at  the  time  he  was  not  ready 
and  able  to  pay  the  purchase  price.  On  the  contrary,  the  action  was 
by  the  vendor  against  the  vendee,  who  was  the  administratrix  of  her 
husband's  estate,  to  charge  the  estate  with  her  contract  of  purchase, 
and  Lord  Holt  was  speaking  of  what  was  necessary  to  be  done  by 


Sec.  2)  STOPPAGE    IN    TRANSITU  521 

the  vendor  to  enable  him  to  sue  for  the  vendee's  breach  in  not  making 
full  payment.  The  holding  that,  to  entitle  the  seller  to  sue,  he  must 
offer  to  perform  and  request  performance  by  the  purchaser,  is  in  ac- 
cordance with  the  now  generally  recognized  rule  on  the  subject. 

The  general  rule  is  that  in  contracts  of  bargain  and  sale,  where 
there  is  no  agreement  for  credit,  the  promise  of  the  vendor  to  sell 
and  deliver  the  property,  and  that  of  the  purchaser  to  pay  the  con- 
tract price,  are  mutually  dependent,  and  neither  party  is  bound  to 
perform  without  contemporaneous  performance  by  the  other.  Pay- 
ment or  tender  of  the  price  is  the  condition  upon  which  the  purchaser 
can  require  delivery  of  the  property;  and  delivery  or  tender  by  the 
seller  is  just  as  essential  on  his  part  if  he  would  sue  for  the  price,  or 
for  damages  for  its  non-payment.  If  both  parties  are  unable  to  per- 
form, neither  can  maintain  an  action  against  the  other ;  and  there- 
fore, while  it  is  necessary  for  the  vendor,  if  he  would  sue,  to  offer 
performance  on  his  part,  he  is  in  a  position  to  defend  without  doing 
so,  if  the  vendee  is  not  able  to  perform.  In  Reader  v.  KnatchbuU,  5 
Term  R.  218,  an  application  was  made  of  the  rule  which  is  much  in 
point.  The  plaintiff  declared  upon  an  agreement  by  the  defendant  to 
deliver  to  him  a  quantity  of  Manchester  cottons.  The  defense  was 
that  after  the  making  of  the  contract  the  plaintiff  had  compounded 
with  his  creditors.  Mr.  Justice  Buller  directed  the  jury  "that,  if  they 
believed  the  plaintiff  was  really  in  such  a  situation  as  to  be  unable 
to  pay  for  the  goods,  that  was  a  good  defense  in  point  of  law  to  the 
action  ;   and  the  jury  accordingly  found  a  verdict  for  the  defendant." 

When  the  sale  is  upon  credit,  it  is  one  of  the  implied  conditions  of 
the  contract  that  the  vendee  shall  keep  his  credit  good ;  his  promise 
to  pay  at  a  future  day  involving  an  engagement  on  his  part  that  he 
will  remain  and  then  be  able  to  pay,  which  engagement  is  broken  when 
he  becomes  insolvent  and  unable  to  pay ;  and  hence  the  right  of  the 
vendor  to  then  stop  performance  of  the  contract  on  his  part.  Nor  is 
the  rule  varied  by  the  fact  that  the  vendee  has  given  his  notes  or  bills 
or  other  securities  for  the  price,  payable  at  the  end  of  the  time  for 
which  the  credit  is  allowed.  The  vendor,  in  such  case,  incurs  no  lia- 
bility by  not  delivering  the  property,  unless  the  vendee  pay  or  tender 
the  contract  price.  But,  in  order  to  sue  the  vendee,  he  should  offer 
to  deliver  according  to  the  contract.  Such  is  the  scope  of  the  rule 
laid  down  in  Mining  Co.  v.  Brown,  124  U.  S.  385,  8  Sup.  Ct.  531,  31 
L.  Ed.  424,  where  it  is  held :  The  insolvency  of  the  vendee  in  a  con- 
tract for  the  sale  and  future  delivery  of  personal  property  in  install- 
ments, payment  to  be  made  in  notes  of  the  vendee  as  each  installment 
is  delivered,  'is  sufficient  to  justify  the  vendor  for  refusing  to  con- 
tinue the  delivery,  unless  payment  be  made  in  cash ;'  but  it  does  not 
absolve  him  from  offering  to  deliver  the  property  in  performance  of 
the  contract,  if  he  intends  to  hold  the  purchasing  party  to  it.  He 
cannot   insist   upon   damages    for   non-performance  by   the   insolvent 


o22  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

without  showing  performance  on  his  own  part,  or  an  offer  to  per- 
form, with  abihty  to  make  the  oft"er  good. 

The  rule  must  work  both  ways.  The  rights  and  obHgations  of  the 
vendor  and  vendee  are  correlative.  If  the  insolvency  of  the  vendee 
is  sufficient  to  justify  the  vendor  in  refusing  to  deliver  the  property 
unless  payment  be  made  in  cash,  it  follows  that  the  vendor  incurs 
no  liability  by  his  refusal,  and  therefore  no  right  of  action  accrues 
to  the  vendee,  unless  payment  be  made  by  him ;  and  if  the  vendor 
cannot  insist  upon  damages  for  the  vendee's  non-performance  with- 
out showing  an  oft'er  on  his  part,  with  the  ability,  to  perform,  so 
neither  can  the  vendee,  if  he  is  without  the  ability  to  perform,  re- 
cover from  the  vendor.  The  observations  of  Gholson,  J.,  in  Ben- 
edict V.  Schaettle,  12  Ohio  St.  520,  521,  are  in  point,  and  are  in  har- 
mony with  this  view  of  the  subject.  He  says:  "If  the  true  prin- 
ciple of  the  right  of  stoppage  in  transitu  be  found  in  that  certainly 
just  rule  of  mutual  contract  by  which  either  party  may  withhold 
performance  on  the  other  becoming  unable  to  perform  on  his  part; 
if  the  foundation  of  the  rule  be  a  just  lien  on  the  goods  for  the 
price  until  delivered, — an  equitable  lien  adopted  for  the  purposes 
of  substantial  justice, — then  it  is  the  ability  to  perform  the  con- 
tract, to  pay  the  price,  which  is  the  material  consideration.  If 
there  be  a  want  of  ability,  it  can  make  no  difference,  in  justice  or 
good  sense,  whether  it  was  produced  by  causes  or  shown  by  acts 
at  a  period  before  or  after  the  contract  of  sale.  Substantially  to  the 
A'endor  who  is  about  to  complete  delivery,  and  abandon  or  lose  his 
proprietary  lien,  the  question  is,  can  the  vendee  perform  the  con- 
tract on  his  part?  has  he,  from  insolvency,  become  unable  to  pay 
the  price?"  And  in  another  part  of  the  opinion  he  further  says: 
"The  rights  of  a  fair  vendee  will  be  sufficiently  protected  by  giv- 
ing him  an  indemnity  when  the  right  of  stoppage  in  transitu  is 
exercised  upon  rumor  or  suspicion  without  any  foundation  in  fact, 
and  by  depriving  the  vendor,  in  all  cases,  of  any  chance  of  specu- 
lating upon  the  goods,  by  requiring  them  to  be  delivered  or  ac- 
counted for  to  the  vendee  or  his  assignee  on  the  payment  or  tender 
of  the  agreed  price." 

But  it  is  contended  that,  while  the  vendor  may  refuse  to  deliver 
the  property  to  the  insolvent  vendee,  he  is  obliged  to  keep  it  for 
the  vendee  until  the  time  of  the  credit  expires,  and  if  he  resell  be- 
fore that  time  the  vendor  may  have  his  action  for  damages.  When, 
by  the  contract,  the  property  is  to  be  delivered  at  a  future  day,  and 
the  vendor  sells  it  to  another  before  that  time  arrives,  the  vendee, 
being  able  to  perform,  may  have  an  immediate  action;  for  the 
vendor,  by  thus  disabling  himself  from  performing  by  delivery  at 
the  proper  time,  commits  a  breach  of  the  contract,  and  the  vendee 
need  not  wait  until  the  time  for  the  delivery  arrives.  But  that  rule 
has  no  application   here.     The  obligation  of  the  vendor,  under  a 


Sec  2)  STOPPAGE    IN    TRANSITU  523 

contract  like  that  between  the  parties  in  this  case,  is  to  deliver  the 
goods  at  the  time  stipulated  in  the  agreement,  which  is  at  once, 
upon  the  receipt  or  tender  of  the  purchaser's  commercial  paper,  or 
within  a  reasonable  time, — not  at  the  time  to  which  the  credit  is 
extended.  The  right  of  the  vendee,  is  to  receive  the  goods  at  the 
time  the  vendor  contracts  to  deliver  them,  and  he  is  not  bound 
to  receive  them  at  any  other  time.  The  breach,  therefore,  on  the 
part  of  the  vendor,  if  there  be  one,  consists  in  his  failure  to  deliver 
the  goods  according  to  the  contract,  and  occurs  at  that  time,  and 
not  upon  a  resale  subsequently  made ;  and  the  vendee's  cause  of 
action  arises,  if  at  all,  upon  the  failure  to  deliver,  and  not  on  the 
resale. 

In  the  case  now  before  us  the  averments  of  the  defendant's  an- 
swer, which  on  the  trial  he  was  not  permitted  to  prove,  though  he 
offered  to  do  so,  show  that  at  the  time  the  goods  were  to  have 
been  delivered,  according  to  the  contract  of  sale,  the  plaintiffs  were 
insolvent  and  their  paper  dishonored,  so  that  the  condition  upon 
which  their  right  to  the  goods  depended  had  not  been  performed 
by  them,  and  they  were  without  the  necessary  ability  to  perform 
the  same.  Upon  what  just  principle  can  the  seller,  in  such  a  case, 
be  required  to  hold  the  goods  until  the  expiration  of  the  credit? 
It  is  true  that  at  that  time  the  vendee  may  again  be  solvent,  and 
able  to  pay.  There  is  no  presumption  or  assurance  that  he  will. 
If  any  presumption  arises,  it  is  rather  that  the  insolvency  will 
continue,  which  is  more  in  accordance  with  the  experience  of  the 
commercial  world.  But,  as  we  have  seen,  it  is  part  of  the  vendee's 
engagement  that  he  will  maintain  his  credit,  which  is  broken  by 
his  insolvency.  And  it  would  be  unjust  to  require  the  vendor  to 
sustain  the  loss  resulting  from  the  destruction  or  deterioration  of 
the  goods  in  the  mean  time,  which  in  many  instances  must  ensue 
if  the  seller  is  compelled  to  keep  the  goods  shut  up,  and  take  the 
risks  of  the  future  solvency  of  the  buyer. 

The  injustice  of  such  a  requirement  is  conceded  where  the  goods 
are  of  a  perishable  nature ;  and  the  vendor,  it  is  now  settled,  is  not 
obliged  to  keep  goods  of  that  character  until  the  termination  of  the 
credit.  In  the  notes  to  Lickbarrow  v.  Mason,  in  Smith's  Leading 
Cases,  (volume  1,  pt.  2,  p.  1199),  it  is  said:  "But  what,  it  will  be 
said,  if  the  goods  be  of  so  perishable  a  nature  that  the  vendor  can- 
not keep  them  until  the  time  of  credit  has  expired?  In  such  a 
case  it  is  submitted  that  courts  of  law,  having  originally  adopted 
this  doctrine  of  stoppage  in  transitu  from  equity,  would  act  on  eq- 
uitable principles  by  holding  the  vendor  invested  with  an  implied 
authority  to  make  the  necessary  sale." 

It  is  insisted,  however,  that  the  right  of  sale  in  such  cases  consti- 
tutes an  exception  to  the  rule.  In  our  opinion  the  reasons  upon 
which  the  exception  rests,  if  it  be  such,  should  make  the  exception 


524  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Cll.  5 

the  general  rule.  The  value  of  many  kinds  of  merchandise,  not 
perishable,  depends  largely  upon  their  being  in  the  market  at  the 
appropriate  seasons,  and  to  supply  temporary  demands;  and,  if 
not  available  for  those  purposes  at  the  proper  time,  they  become 
comparatively  worthless,  or  so  reduced  in  value  as  to  entail  great 
loss,  which  may  be  less  only  in  degree,  though  greater  in  amount, 
than  where  the  goods  are  perishable;  and  it  is  no  more  just  or  eq- 
uitable to  subject  the  vendor  to  the  loss  in  the  one  case  than  in 
the  other.  The  right  of  resale  ought  not,  we  think,  be  made  to  de- 
pend upon  the  degree  or  extent  of  the  loss  that  must  ensue  if  it 
should  be  denied.  It  rests  upon  a  different  principle,  and  grows 
out  of  the  failure  of  the  vendee  to  keep  his  engagement.  Not  that 
the  contract  is  thereby  rescinded,  for  that  would  defeat  the  vendor's 
remedy  for  damages  upon  resale  after  due  notice,  but  that  he  may 
elect  to  treat  the  agreement  for  the  credit  as  at  an  end,  on  account 
of  the  vendee's  default.  We  see  no  good  reason  for  holding  that 
the  rights  of  the  seller  are  any  the  less  where  the  sale  is  upon 
credit,  and  the  property  is  retained  by  him  on  account  of  the  buy- 
er's insolvency,  than  they  would  be  if  the  sale  were  for  cash,  and 
the  vendee  was  unable  to  pay  the  price  agreed  upon.  In  either 
case  the  incapacity  of  the  vendee  to  perform  his  part  of  the  agree- 
ment— and  insolvency  is  incapacity — warrants  the  vendor  in  with- 
holding performance  on  his  part. 

We  are  therefore  of  opinion  the  trial  court  erred  in  excluding 
the  evidence  of  the  plaintifts'  insolvency,  and  in  charging  the  jury 
as  shown  in  the  statement  of  the  case,  and  also  in  refusing  the  in- 
struction requested  by  the  defendant  therein  contained.  Counsel 
have  argued  a  question  relating  to  the  charge  of  the  court  on  the 
measure  of  damages;  but,  as  no  exception  was  taken  to  the  charge 
on  that  subject,  it  will  not  be  further  noticed. 

For  the  errors  mentioned  above,  the  judgments  below  are  re- 
versed, and  the  cause  remanded  for  further  proceedings. 


SECTION  3.— RESALE  AND  RESCISSION 


MARTINDALE  v.  SMITH. 

(Court  of  Queen's  Bench,  1S41.     1  Q.  B.  .389.) 

Trover  for  goods  and  chattels,  to  wit,  six  stacks  of  oats,  etc.,  of 
which  plaintifit"  was  lawfully  possessed  as  of  his  own  property.  Pleas : 
1.  Not  guilty.  2.  That  plaintiff  was  not  possessed  of  the  goods 
and  chattels  as  of  his  own  property,  in  manner  and  form,  etc.  Is- 
sues thereon. 


Sec.  3)  RESALE    AND    RESCISSION  525 

On  the  trial,  before  Alderson  B.,  at  the  Cumberland  spring  as- 
sizes, 1839,  it  appeared  that  defendant,  being  owner  of  six  stacks 
of  oats  then  standing  on  his  ground,  sold  them  to  the  plaintiff,  under 
the  following  written  contract. 

"April  23d,  1838.  Sold  to  Mr.  John  Martindale  of  Catterlen  six 
oat  stacks,  for  £85. 

"John  Smith  gives  John  Martindale  liberty  to  let  the  stacks  stand, 
if  he  thinks  fit,  until  the  middle  of  August  next ;  and  John  Martin- 
dale to  pay  John  Smith  for  the  stacks  in  twelve  weeks  from  the  date 
hereof." 

Signed  by  the  parties. 

In  the  beginning  of  July,  the  defendant  told  the  plaintiff  that,  if 
he,  plaintiff,  did  not  pay  on  the  16th  of  that  month,  defendant  would 
consider  the  contract  at  an  end.  The  plaintiff  did  not  pay  on  that 
day,  but  afterwards  requested  time,  which  the  defendant  refused  to 
give,  adding  that  plaintiff',  as  he  had  failed  in  payment  at  the  time 
appointed  by  the  contract,  should  not  have  the  stacks.  Two  or  three 
days  afterwards,  the  plaintiff'  tendered  the  money ;  which  the  de- 
fendant refused  to  accept.  On  the  14th  of  August,  the  plaintiff 
served  defendant  with  a  written  notice,  in  which  he  repeated  the 
tender,  and  stated  that  he  should  attend  to  remove  the  stacks  on  the 
next  day  at  ten  in  the  morning,  and  demanded  that  he  should  be 
then  admitted  to  the  field  in  which  the  stacks  were,  requiring  the 
defendant  not  to  sell  them.  An  actual  tender  was  then  again  made, 
and   refused :    and   defendant   afterwards   sold  the    stacks. 

The  defendant's  counsel  contended  that  plaintiff,  having  made  de- 
fault in  payment  at  the  appointed  day,  was  not  entitled  to  the  posses- 
sion. The  learned  judge  directed  a  verdict  for  the  plaintiff,  giving 
leave  to  move  to  enter  a  verdict  for  the  defendant  on  the  second  issue. 

Lord  Denman,  C.  J.,  now  delivered  the  judgment  of  the  court. 
After  stating  the  facts,  his  lordship  proceeded  as   follows : 

Having  taken  time  to  consider  of  our  judgment,  owing  to  the 
doubts  excited  by  a  most  ingenious  argument,  whether  the  vendor 
had  not  a  right  to  treat  the  sale  as  at  an  end  and  reinvest  the  prop- 
erty in  himself  by  reason  of  the  vendee's  failure  to  pay  the  price 
at  the  appointed  time,  we  are  clearly  of  opinion  that  he  had  no 
such  right,  and  that  the  action  is  well  brought  against  him.  For  the 
sale  of  a  specific  chattel  on  credit,  though  that  credit  may  be  lim- 
ited to  a  definite  period,  transfers  the  property  in  the  goods  to  the 
vendee,  giving  the  vendor  a  right  of  action  for  the  price,  and  a  lien 
upon  the  goods,  if  they  remain  in  his  possession,  till  that  price  be 
paid.  But  that  default  of  payment  does  not  rescind  the  contract. 
Such  is  the  doctrine  cited  by  Holroyd,  J.,  from  Com.  Dig.  Agree- 
ment, (B.  3.),  in  Tarling  v.  Baxter,  6  B.  &  C.  360,  362;  and  it  will 
be  found  consistent  with  all  the  numerous  cases  referred  to  in  the 
course  of  the  argument.  In  a  sale  of  chattels,  time  is  not  of  the  es- 
sence of  the  contract,  unless  it   is  made  so  by  express  agreement. 


526  RIGHTS   OF    UNPAID    SELLER    AGAINST  THE   GOODS  (Ch.  5 

than  which  nothing  can  be  more  easy,  by  introducing  conditional 
words  into  the  bargain.  The  late  case  of  Stead  v.  Dawber,  10  A. 
&  E.  57,  does  not  apply,  depending  (as  Parke,  B.  truly  observed  in 
Marshall  v.  Lynn,  6  M.  &  W.  117);  not  on  the  materiality  of  the 
alteration  in  the  contract,  but  on  the  fact  of  the  alteration  only. 

Pothier,  in  his  Traite  du  contrat  de  vende,  part.  V.  ch.  2,  §  6, 
art.  475  (Oeuvres,  tome  1,  p.  640,  2d  Ed.),  cites  the  Civil  Code  for 
the  proposition,  that  a  purchaser's  delay  in  paying  the  price  does 
not  give  the  vendor  a  right  to  require  a  dissolution  of  the  contract ; 
he  can  only  exact  by  legal  procedure  the  payment  of  the  price  due 
to  him.  "Non  ex  eo,  quod  emptor  non  satis  conventioni  fecit,  con- 
tractus irritus  constituitur."  Cod.  lib.  iv.  tit.  44,  §  14.  He  adds, 
however,  that,  from  the  difficulty  of  enforcing  payment  from  debtors, 
the  French  law  had  departed  from  the  rigour  of  these  principles, 
permitting  a  suit  for  the  dissolution  of  the  contract  for  default  of 
payment.  The  judge  then  appointed  a  more  distant  day;  which 
passed,  and  no  payment  made,  the  vendor  was  permitted  to  resume 
possession  of  the  thing  sold.  But,  even  after  sentence  of  dissolution, 
the  purchaser  may  prevent  that  effect,  and  keep  what  he  has  bought, 
by  appealing,  and  offering,  on  that  appeal,  the  price  which  he  owes, 
with  interest  and  expenses. 

The  vendor's  right,  therefore,  to  detain  the  thing  sold  against  the 
purchaser  must  be  considered  as  a  right  of  lien  till  the  price  is  paid, 
not  a  right  to  rescind  the  bargain.  And  here  the  lien  was  gone  by 
tender  of  the  price.  My  brother  Alderson  directed  the  jury  accord- 
ing to  these  principles :  and  the  rule  for  setting  aside  the  verdict 
must  be  discharged. 

Rule  discharged.^* 


DUSTAN  v.  McANDREW  et  al. 
(Commission  of  Appeals  of  New  Yorlc,  1S70.     44  N.  Y.  72.) 

Appeal  from  an  order  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  made  upon  exceptions  therein  heard  in 
the  first  instance,  directing  judgment  for  the  plaintiff  upon  a  ver- 
dict rendered  at  a  trial  term  of  that  court. 

On  the  24th  of  August,  1860,  J.  S.  &  W.  Brown,  of  the  city  of 

18  In  the  earlier  case  of  Maclean  v.  Dunn,  4  Bing.  722  (182S),  Best,  C.  J., 
said:  "It  is  admitted  that  perishable  articles  may  be  resold.  It  is  difficult 
to  say  what  may  be  esteemed  perishable  articles,  and  what  not;  but  if  ar- 
ticles are  not  perishable,  price  is,  and  may  alter  in  a  few  days,  or  a  few  hours. 
In  that  respect  there  is  no  difference  between  one  commodity  and  another. 
It  is  a  practice,  therefore,  founded  on  good  sense,  to  make  a  resale  of  a  dis- 
puted article,  and  to  hold  the  original  contractor  responsible  for  the  differ- 
ence. The  practice  itself  affords  some  e\'idence  of  the  law,  and  we  ought 
not  to  oppose  it,  except  on  the  authority  of  decided  cases."  For  a  summary 
«f  the  results  of  the  English  cases,  see  Benjamin.  Sales  (5th  Eng.  Ed.)  p.  949. 


Sec,  3)  RESALE    AND    RESCISSION  527 

New  York,  executed  an  agreement  with  the  plaintiff  to  sell  him 
100,000  pounds  of  hops,  as  follows: 

"In  consideration  of  the  sum  of  one  dollar,  the  receipt  of  which 
is  hereby  acknowledged,  we  have  sold  this  day  to  Mr.  John  F.  Dus- 
tan,  of  this  city,  100,000  pounds  of  first  sort  western  or  eastern 
hops,  as  we  may  select;  growth  of  1860;  deliverable  in  the  city  of 
New  York,  at  our  option,  during  the  months  of  October  or  Novem- 
ber, 1860,  at  seventeen  cents  per  pound,  subject  to  Mr.  J.  S.  Brown's 
inspection,  or  other  mutually  satisfactory.  Terms,  cash  on  delivery. 
Mr.  Dustan's  name  to  be  made  satisfactory  either  by  indorsement 
or  by  a  deposit  of  $2,500  by  both  parties. 

"J.    S.   &   W.   Brown." 

On  the  7th  of  September  the  plaintiff  sold  this  contract  to  the  de- 
fendants, by  an  instrument  of  which  the  following  is  a  copy : 

"In  consideration  of  the  sum  of  one  dollar,  the  receipt  of  which 
is  hereby  acknowledged,  I  have  this  day  sold  to  AIcAndrew  & 
Wann  the  contract  of  J.  S.  &  W.  Brown,  dated  24th  August,  1860, 
for  100,000  pounds  first  sort  hops,  western  or  eastern,  growth  of 
I860;  upon  condition  that  the  said  McAndrew  &  Wann  fulfill  the 
conditions  of  said  contract  to  the  said  J.  S.  &  W.  Brown,  and  pay 
to  me,  in  addition,  on  delivery  of  the  hops,  ten  and  one-half  cents 
per  pound.  John  F.  Dustan. 

"New  York,  September  7,   1860." 

On  the  28th  day  of  November,  J.  S.  &  W.  Brown  notified  the 
plaintiff  by  letter,  that  they  would  deliver  the  hops  pursuant  to 
contract  on  the  30th  of  that  month;  and  plaintiff  immediately,  on 
the  same  day,  notified  the  defendants  of  that  fact,  inclosing  to  them 
the  letter  of  J.  S.  &  W.  Brown ;  and  on  the  same  day  the  said  J. 
S.  &  W.  Brown  wrote  a  similar  letter  to  the  defendants.  These 
notices  actually  came  to  the  hands  of  the  defendants  on  the  morn- 
ing of  the  30th. 

Prior  to  November  30,  John  S.  Brown  had  inspected  the  hops, 
and  put  his  brand  upon  them,  and  certified  that  they  were  such 
hops  as  the  contract  called  for.  On  the  30th  of  November,  J.  S.  & 
W.  Brown  were  ready  and  willing  to  deliver  the  hops,  and  the  de- 
fendants were  requested  to  take  them,  and  they  declined  on  the 
sole  ground,  as  they  claimed,  that  they  had  not  had  an  opportunity 
to  examine  them  and  inspect  their  quality,  and  because  Messrs. 
Brown  had  refused  to  let  an  inspector,  whom  they  sent,  inspect 
the  hops. 

On  the  24th  of  December  the  plaintiff  took  the  hops  from  Messrs. 
Brown  and  paid  for  them,  and  on  the  same  day  wrote  the  follow- 
ing letter  to  defendants : 

"New  York,  December  24th,  1860. 

"Messrs.  McAndrew  &  Wann — Gentlemen:  The  100,000  pounds 
hops  mentioned  in  contract  of  J.  S.  &  W.  Brown  with  me,  of  24th 


528  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

August,  1860,  and  in  contract  of  yourselves  with  me  of  7th  Sep- 
tember, 1860,  are  now  at  the  store  No.  4  Bridge  street,  awaiting 
the  fulfillment  by  you  of  the  terms  of  your  contract,  and  I  hereby 
tender  to  you  the  said  hops,  and  demand  from  you  the  payment 
of  the  sum  of  $27,500,  the  amount  of  such  contract  price.  Unless 
you  comply  with  the  terms  of  said  contract,  on  or  before  the  26th 
day  of  December,  instant,  I  will  proceed  to  sell  the  same  on  your 
account  and  hold  you  for  any  deficiency. 

"Your  obedient  servant,  John  F.   Dustan." 

Defendants  still  declined  to  take  the  hops,  and  then  on  the  26th 
day  of  December  plaintift  placed  them  in  the  hands  of  a  hop  broker, 
who  sold  them  for  twenty  cents  per  pound,  which  sale  was  con- 
ceded on  the  trial  by  the  defendants,  to  have  been  fairly  made. 

This  suit  was  commenced  for  the  breach  of  the  contract  to  the 
part  of  the  defendants,  in  not  taking  the  hops  according  to  con- 
tract. It  was  tried  in  the  Superior  Court  of  New  York,  before  the 
court  and  a  jury.  On  the  trial  the  foregoing  facts  appeared,  and 
the  plaintiff  also  gave  evidence  tending  to  show,  that  on  the  30th 
day  of  November,  and  on  the  26th  day  of  December,  twenty  cents 
per  pound  was  the  fair  market  value  of  the  hops ;  and  the  defend- 
ants gave  evidence  tending  to  show,  that  on  both  of  these  da3-s  the 
market  value  was  some  cents  higher. 

There  was  also  evidence  showing  that  hops  had  a  downward 
tendency  in  market  all  through  the  month  of  December.  It  was 
shown,  also,  and  not  disputed,  that  the  hops  in  all  respects  answered 
the  contract. 

After  the  evidence  was  closed  the  presiding  judge  stated,  that 
it  was  his  opinion  that  there  was  no  question  for  the  jury,  and  that 
the  plaintiff  was  entitled  to  recover  the  difference  between  the  con- 
tract price  and  the  price  he  obtained  on  the  resale. 

The  counsel  for  defendants  requested  the  court  to  submit  the 
facts  to  the  jury,  and  to  charge  the  jury  in  such  form  as  to  raise 
the  questions  discussed  in  the  following  opinion,  and  to  the  refusal 
of  the  court,  defendant's  counsel  excepted. 

The  jury,  under  the  direction  of  the  court,  rendered  a  verdict 
in  favor  of  plaintiff  for  $8,130.  The  court  directed  the  exceptions 
to  be  heard  in  the  first  instance  at  the  General  Term ;  and  the 
General  Term  having  denied  a  new  trial,  and  ordered  judgment  for 
plaintiff,  the  defendants  appealed  to  this  court. 

Earl,  C.^°  *  *  *  By  the  purchase  of  the  contract  the  defend- 
ants were  substituted,  as  to  its  performance,  in  the  place  of  the 
vendee  therein  named,  and  were  bound  to  do  all  that  he  had  agreed 
to  do  or  Avas  bound  in  law  to  do.  When  notified  that  the  hops 
were  ready  for  delivery  they  declined  to  take  them,  upon  the  sole 
ground  that  they  had  not  had  an  opportunity  to  examine  or  inspect 

19  Part  of  the  opiuiou  is  omitted. 


Sec.  3)  RESALE    AND    RESCISSION  "  529 

them ;  and  they  claimed  that  they  had  sent  one  Smith  to  inspect 
them,  and  that  he  had  been  declined  permission  to  inspect  them. 
There  was  no  proof  however  that  they  ever  tried  to  examine  or  in- 
spect the  hops,  or  that  the  vendors  ever  refused  to  permit  them  to 
examine  or  inspect  them.  They  sent  Smith  to  inspect  them,  and  he 
went  to  one  of  the  several  storehouses  where  some  of  the  hops 
were  stored,  and  he  says  he  was  there  refused  an  opportunity  to  in- 
spect them  by  Mr.  A.  A.  Brown.  But  there  is  no  proof  that  he 
was  in  any  way  connected  with  the  vendor,  or  that  he  had  any 
agency  or  authority  whatever  from  them.  There  was  no  proof  that 
defendants  ever  tried  with  the  vendors  to  agree  upon  any  other 
inspector,  or  that  they  ever  asked  the  vendors  to  have  the  hops  in- 
spected by  any  other  inspector,  and  they  made  no  complaint  at  any 
time  that  they  were  inspected  without  notice  to  them.  The  point 
that  they  should  have  had  notice  of  the  inspection  was  not  taken  in 
the  motion  for  a  nonsuit,  nor  in  any  of  the  requests  to  the  court  to 
charge  the  jury.  If  the  point  had  been  taken  in  the  answer  or  on 
the  trial,  the  plaintiff  might  perhaps  have  shown  that  notice  was 
given  by  the  vendors,  or  that  it  was  waived. 

Hence  we  must  hold,  upon  the  case  as  presented  to  us,  that  there 
was  no  default  on  the  part  of  the  plaintiff  or  the  vendors,  and  that 
the  defendants  were  in  default  in  not  taking  and  paying  for  the 
hops.  The  only  other  question  to  be  considered  is,  whether  the 
court  erred  in  the  rule  of  damages  adopted  in  ordering  the  verdict. 

The  court  decided  that  the  plaintiff  was  entitled  to  recover  the 
dift'erence  between  the  contract  price  and  the  price  obtained  by  the 
plaintiff  upon  the  resale  of  the  hops,  and  refused,  upon  the  request 
of  the  defendants,  to  submit  to  the  jury  the  question  as  to  the  mar- 
ket value  of  the  hops  on  or  about  the  30th  day  of  November. 

The  vendor  of  personal  property  in  a  suit  against  the  vendee  for 
not  taking  and  paying  for  the  property,  has  the  choice  ordinarily 
of  either  one  of  three  methods  to  indemnify  himself.  (1)  He  may 
store  or  retain  the  property  for  the  vendee,  and  sue  him  for  the 
entire  purchase-price;  (2)  He  may  sell  the  property,  acting  as  the 
agent  for  this  purpose  of  the  vendee,  and  recover  the  dift'erence  be- 
tween the  contract  price  and  the  price  obtained  on  such  resale ;  or 
(3)  He  may  keep  the  property  as  his  own,  and  recover  the  differ- 
ence between  the  market  price  at  the  time  and  place  of  delivery 
and  the  contract  price.  2  Pars.  Cont.  484;  Sedgw.  Dam.  282;  Lew- 
is V.  Greider,  49  Barb.  606;  Pollen  v.  Le  Roy,  30  N.  Y.  549.  In 
this  case  the  plaintiff  chose  and  the  court  applied  the  second  rule 
above  mentioned.  In  such  case  the  vendor  is  treated  as  the  agent 
of  the  vendee  to  make  the  sale,  and  all  that  is  required  of  him  is 
that  he  should  act  with  reasonable  care  and  diligence,  and  in  good 
faith.  He  should  make  the  sale  without  unnecessary  delay,  but  he 
Wood  w.  Sales — 34 


530  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

must  be  the  judge  as  to  the  time  and  place  of  sale,  provided  he  act 
in  good  faith  and  with  reasonable  care  and  diligence.  Here  it  is 
conceded  that  the  sale  was  fairly  made ;  it  was  made  in  the  city 
of  New  York,  in  less  than  one  month  from  the  time  the  defendants 
refused  to  take  the  hops.  It  was  not  claimed  on  the  trial  that  the 
delay  was  unreasonable,  and  we  can  find  nothing  in  the  case  to  au- 
thorize us  to  hold  that  it  was  unjustifiable.  We  are  therefore  of 
the  opinion  that  the  court  did  not  err  as  to  the  rule  of  damages. 

The  judgment  should  therefore  be  affirmed,  with  costs. 

For  affirmance:  LoTT,  C.  C. ;  Earl  and  Hunt,  CC.  Gray,  C, 
was  for  reversal,  on  the  ground  that  the  delay  in  selling  was  too  great. 
Leonard,  C,  did  not  vote. 

Judgment  affirmed,  with  costs. ^^ 


ACKERMAN   v.    RUBENS. 

(Court  of  Appeals  of  New  York,  1901.     167  N.  Y.  405,  GO  N.  E,  750,  53  L.  R.  A. 
S67,  82  Am.  St.  Rep.  728.) 

On  the  28th  of  July,  1897,  at  the  city  of  New  York,  the  plaintiff 
sold  his  yacht  lola  to  the  defendant  for  the  sum  of  $2,250,  by  an 
executory  contract  which  impliedly  provided  that  the  title  should  not 
pass  until  the  purchase  price  should  have  been  fully  paid.  The  de- 
fendant refused  to  complete  his  purchase,  whereupon  the  plaintiff 
gave  him  written  notice  that  he  should  sell  the  yacht  "either  by  pub- 

2  0  In  Moore  v.  Potter,  155  N.  Y.  481,  50  N.  R  271,  63  Am.  St.  Rep.  692 
(1898)  Martin,  J.,  said:  "It  is  to  be  observed  tbat  in  many  of  the  cases  cited 
it  has  been  said  that  in  thus  selling  the  property  tlie  vendor  acts  as  the 
agent  of  the  vendee  for  that  purpose.  Clearly,  the  use  of  the  words  'as  agent 
of  the  vendee'  was  not  intended  as  a  determination  that  the  relation  between 
the  parties  was  that  which  ordinarily  exists  between  a  principal  who  owns 
property  and  an  agent  who  may  be  authorized  to  manage  or  sell  it.  But 
it  is  a  general  expression  which  has  been  somewhat  inaccurately  used  to  define 
the  right  of  a  vendor  to  make  a  resale  and  liold  the  vendee  responsible  for 
his  loss.  It  is  quite  manifest  that  a  resale  made  under  such  circumstances 
is  not  made  by  the  vendor  strictly  as  the  agent  of  the  vendee,  but  he  acts  for 
himself  in  disposing  of  the  property  for  the  puriwse  of  ascertaining  the  actual 
damages  he  may  sustain.  Doubtless  in  making  it  the  vendor  would  be  bound 
to  sell  within  a  reasonable  time,  to  exercise  good  faith  to  effect  a  sale  at  the 
best  price  lie  could  obtain,  to  follow  any  proper  instructions  the  vendee  might 
give  as  to  the  time  and  manner  in  which  it  should  be  made,  and  to  give  credit 
upon  the  contract  price  for  the  amount  received.  His  duties  in  making  the 
sale  may,  in  some  respects,  resemble  those  of  an  agent,  and  thus  the  expres- 
sion that  he  acts  "as  the  agent  of  the  vendee'  has  arisen.  That  he  owes 
the  vendee  the  duty  to  thus  conduct  the  sale  is  clear,  but  that  his  acts  in 
making  it  can  be  properly  regarded  as  the  acts  of  an  agent,  as  that  word  is 
generally  understood,  is  quite  other^^'ise.  Surely  the  fact  that  a  vendor  might 
seek  this  remedy  against  an  insolvent  or  doubtful  vendee,  would  not  confer 
upon  the  latter  such  a  title  as  would  enable  him  to  demand  and  hold  the 
property  without  complying  Avith  the  terms  of  the  contract.  To  say  then  that 
the  vendor  becomes  the  agent  of  the  vendee  in  making  the  sale  is  not  quite 
correct,  and  is  to  be  regarded  at  most  as  a  mere  fiction  of  law,  and  the  bene- 
ficial title  does  not  pass  to  the  vendee." 


Sec.  3)  RESALE    AND    RESCISSION  531 

lie  sale  at  auction,  or  private  negotiation,  whichever  in  my  judgment 
will  result  in  obtaining  the  most  favorable  price,  and  in  the  event 
of  any  deficiency  in  the  sum  so  obtained  and  the  contract  price  as 
agreed  upon  as  per  contract  of  July  28th,  1897,  namely,  $2,250,  I 
shall  hold  you  for  such  deficiency."  The  defendant  paid  no  atten- 
tion to  this  notice,  and  had  no  further  communication  with  the  plain- 
tiff at  any  time  on  the  subject  of  selling  the  yacht. 

The  plaintiff  promptly  placed  the  vessel  in  the  hands  of  an  ex- 
perienced yachtsman  for  sale,  but  after  due  effort  no  sale  could  be 
made,  although  she  was  advertised  in  a  prominent  New  York  daily 
newspaper  every  Sunday  during  the  months  of  August  and  Septem- 
ber. Thereupon  the  plaintiff  placed  her  in  the  hands  of  a  public 
auctioneer  for  sale  at  auction,  and  on  the  29th  of  September  gave 
the  defendant  personal  notice  in  writing  that  she  would  be  sold  at 
auction  on  the  6th  of  October,  1897,  at  1  o'clock  p.  m.,  at  the  store 
of  the  auctioneer.  No.  29  Burling  Slip,  in  the  city  of  New  York. 
In  the  advertisement  of  the  auctioneer  she  was  fully  and  accurately 
described,  and  notice  was  given  that  she  could  be  "seen  at  Atlantic 
Yacht  Club  Basin,  foot  of  55th  street,  Brooklyn."  At  the  time  and 
place  named  she  was  sold  at  auction  in  the  usual  way  to  an  agent 
of  the  plaintiff'  for  $1,100,  which  was  the  highest,  but  not  the  only, 
bid,  as  a  stranger  had  run  her  up  to  $1,050.  The  expenses  of  the 
sale  were  $90,  of  which  $40  was  for  advertising,  handbills,  and  post- 
age, and  $50  was  for  the  services  of  the  auctioneer. 

The  plaintiff  credited  the  net  proceeds  of  the  sale  upon  the  pur- 
chase price,  and  sued  the  defendant  for  the  balance,  amounting  to 
$1,240.  The  defendant,  in  his  answer,  pleaded  a  general  denial,  and 
also  that  he  was  induced  to  purchase  the  yacht  by  certain  fraudulent 
representations  made  by  the  plaintiff  as  to  her  condition,  but  on  the 
trial  he  gave  no  evidence  in  support  of  that  allegation  or  any  other. 
When  the  plaintiff'  rested,  after  proving  the  foregoing  facts,  the  trial 
court,  upon  motion  of  the  defendant,  directed  a  verdict  for  the 
plaintiff  for  nominal  damages  only,  and  an  exception  was  duly  taken. 
The  jury  rendered  a  verdict  for  six  cents,  and,  the  judgment  entered 
accordingly  having  been  affirmed  by  the  appellate  division,  the  plain- 
tiff came  here. 

Vann,  J.  V/hen  the  vendee  of  personal  property,  under  an  execu- 
tory contract  of  sale,  refuses  to  complete  his  purchase,  the  vendor 
may  keep  the  article  for  him,  and  sue  for  the  entire  purchase  price; 
or  he  may  keep  the  property  as  his  own,  and  sue  for  the  difference 
between  the  market  value  and  the  contract  price ;  or  he  may  sell  the 
property  for  the  highest  sum  he  can  get,  and,  after  crediting  the  net 
amount  received,  sue  for  the  balance  of  the  purchase  money.  Moore 
V.  Potter,  155  N.  Y.  481,  50  N.  E.  271,  63  Am.  St.  Rep.  692;  Dustan 
V.  McAndrew,  44  N.  Y.  72. 

While  the  courts  below  recognized  this  rule,  they  did  not  apply 
it;    for  they  held  that  the  sale  at  auction  was  no  sale  at  all,  because 


532  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

a  man  cannot  sell  to  himself.  This  would  be  true  of  an  attempt  to 
make  a  private  sale  to  one's  self,  but  it  is  not  true  of  a  sale  at  pub- 
lic auction,  fairly  conducted  by  a  licensed  auctioneer,  and  made  at  a 
reasonable  time  and  place,  after  adequate  opportunity  to  see  the  prop- 
erty, due  advertisement  to  the  public,  and  personal  notice  to  the  ven- 
dee, when  the  real  purpose  is  to  ascertain  the  value  of  the  property. 
The  law  is  satisfied  with  a  fair  sale,  made  in  good  faith,  according 
to  established  business  methods,  with  no  attempt  to  take  advantage 
of  the  vendee.  Such,  as  the  jury  might  have  found,  was  the  sale 
under  consideration.  The  primary  object  of  the  sale  was  not  to  pass 
title  from  the  vendor,  but  to  lessen  the  loss  of  the  vendee.  The  sub- 
ject of  the  sale  had  no  market  value,  and  the  amount  for  which  it 
could  be  sold  depended  largely  upon  taste  and  fancy.  A  public  com- 
petitive sale  by  outcry  to  the  highest  bidder,  duly  advertised  and 
made  upon  notice  to  the  vendee,  is  a  safer  method  of  measuring  the 
damages  than  a  sale  by  private  negotiation,  which  has  been  held  suffi- 
cient. Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  35  N.  E.  415.  A 
fair  public  sale,  in  the  absence  of  other  evidence,  is  competent  evi- 
dence of  value. 

The  plaintiff  did  not  conduct  the  sale  himself,  but  placed  the  yacht 
in  the -hands  of  a  public  auctioneer  for  sale,  without  reservation,  on 
account  of  whom  it  might  concern.  While  the  auctioneer  was  his 
agent,  he  could  not  lawfully  control  him  so  as  to  prevent  an  honest 
sale.  The  defendant  had  notice  and  an  opportunity  to  protect  him- 
self, yet  he  asked  for  no  postponement,  made  no  request,  gave  no 
instructions,  and  did  not  even  appear  at  the  sale.  If  the  plaintiff's 
agent  had  refrained  from  bidding,  the  property  would  have  gone  to 
a  stranger  for  a  less  sum  than  it  finally  brought,  and  yet  in  that 
event  even,  according  to  the  defendant's  theory,  the  sale  would  have 
been  valid.  The  fact  that  the  plaintiff  outbid  all  competitors  did 
not  render  the  sale  invalid ;  for  he  had  a  right  to  bid,  provided  he 
took  no  advantage  by  trying  to  prevent  others  from  bidding,  or  by 
disregarding  any  reasonable  request  of  the  defendant,  or  in  any  other 
way.  If  he  had  acted  as  auctioneer,  or  in  collusion  with  the  auction- 
eer, or  there  was  any  evidence  of  furtive  eft'ort  on  his  part,  or  any- 
thing to  challenge  the  fairness  of  the  sale,  the  action  of  the  trial  court 
in  virtually  withdrawing  the  case  from  the  jury  might  have  been  jus- 
tified; but  the  mere  fact  that  he  was  the  highest  bidder  at  a  public 
sale,  the  fairness  of  which  is  not  questioned  in  any  other  respect, 
did  not  warrant  the  direction  for  nominal  damages  only.  The  ob- 
ject of  the  sale  was  to  measure  the  damages  caused  by  the  default 
of  the  defendant,  and  they  were  diminished,  instead  of  being  in- 
creased, by  the  action  of  the  plaintiff. 

We  forbear  further  discussion,  because  the  question  is  no  longer 
open  in  this  court,  as  it  was  involved  in  a  case  recently  decided  by  us 
upon  careful  consideration  after  full  discussion  by  counsel.  Moore 
v.  Potter,  155  N.  Y.  481,  50  N.  E.  271,  63  Am.  SI  Rep.  692.     In 


Sec.  3)  RESALE    AND    RESCISSION  533 

that  case,  as  in  this,  the  property  was  sold  at  auction  to  a  representa- 
tive of  the  vendor,  and  the  point  was  distinctly  made  on  the  argu- 
ment before  us  that  as  the  vendor  was  the  real  purchaser,  "the  sale 
was  colorable  only,  and  absolutely  without  effect  upon  the  rights  of 
the  parties."  While  we  did  not  discuss  the  question  in  our  opinion, 
it  was  necessarily  involved,  was  passed  upon  in  consultation,  and 
decided.  Both  upon  principle  and  authority  we  think  that  the  amount 
for  which  the  yacht  was  struck  off  to  the  vendor  at  an  auction  sale 
fairly  conducted,  upon  notice  to  the  vendee,  with  no  suspicion  of 
fraud  or  undue  advantage,  was  lawful  evidence  of  the  value  of  the 
yacht,  and  presented  a  case  for  the  consideration  of  the  jury. 

The  judgment  should  therefore  be  reversed,  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 

HaighT,  J.  (dissenting).-^  The  rule  of  damages  for  a  breach  by 
the  buyer  of  a  contract  for  the  sale  of  personal  property  is  well  set- 
tled. The  seller  may  store  the  property  for  the  buyer,  and  sue  for 
the  purchase  price ;  or  may  sell  the  property  as  agent  for  the  vendee, 
and  recover  any  deficiency  resulting ;  or  may  keep  the  property  as 
his  own,  and  recover  the  difference  between  the  contract  price  and 
the  market  value  at  the  time  and  place  of  delivery.  If  he  sells  as 
agent,  he  may  sell  either  at  public  or  private  sale ;  but  it  must  be  a 
sale  made  in  good  faith,  and  in  such  manner  as  to  produce  most 
nearly  the  full  value  of  the  property.  Selling  as  agent,  he  cannot 
sell  to  himself.  Selling  involves  contracting,  and  a  person  cannot 
contract  with  himself  and  bind  others  thereby.  If  he  could  sell  to 
himself  publicly,  he  could  privately,  and  thus  be  able  to  perpetrate 
a  fraud  or  an  injustice  which  might  be  difficult  to  detect  or  prove. 
Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  75,  35  N.  E.  415;  Pol- 
len v.  Le  Roy,  30  N.  Y.  549,  557 ;  Dustan  v.  McAndrew,  -44  N.  Y. 
78;  Hayden  v.  Demets,  53  N.  Y.  426;  Bain  v.  Brown,  56  N.  Y. 
285.     *     *     * 

I  think  the  judgment  should  be  affirmed. 

Parke;r,  C.  J.,  and  BartlETT  and  Martin,  JJ.,  concur  with  Vann, 
J.    Gray  and  Werner,  JJ.,  concur  with  Haight,  J. 

Judgment    reversed,   etc. 


PRATT  V.  S.  FREEMAN  &  SONS  MFG.  CO. 

(Supreme  Court  of  Wisconsin,  1902.     115  \yis.  648,  92  N.  W.  B6S.) 

The  complaint  was  to  the  following  eft'ect :  February  16,  1900, 
the  Central  Navigation  &  Construction  Company  of  the  state  of 
Oregon,  contracted  with  defendant,  of  the  city  of  Racine,  Wiscon- 
sin, for  a  steam  boiler  to  be  manufactured  and  delivered  to  such 
company  by  May  1st,  following,  for  the  sum  of  $6,000,  one  third 
being  paid  at  the  date  of  the  contract  and  the  balance  to  be  paid  one 

2  1  Part  of  the  dissenting  opinion  is  omitted. 


534  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

half  at  the  time  of  the  deHvery  of  the  boiler  and  the  other  in  thirty 
days  thereafter.  In  November,  1900,  defendant  being  in  default  as 
to  the  delivery  of  the  boiler  but  having  it  ready  therefor,  refused 
the  navigation  company's  demand  for  the  privilege  to  inspect  it  pre- 
liminary to  shipment,  said  company  offering  at  the  time  of  such  de- 
mand to  pay  the  balance  due  therefor.  Subsequent  to  the  date  last 
mentioned,  defendant  sold  the  boiler  to  other  parties,  pretending  to 
have  rescinded  the  contract  with  the  navigation  company.  Novem- 
ber 20,  1900,  and  before  this  action  wsls  commenced,  such  company, 
for  value,  assigned  its  right  to  recover  the  down-payment  of  $2,000 
to  plaintiff.  December  6,  1900,  plaintiff  notified  defendant  of  such 
assignment  and  demanded  payment  of  said  sum  with  interest  from 
the  time  the  same  came  to  his  hands,  which  demand  was  refused. 
Judgment  was  asked  for  $2,000  with  interest  and  costs. 

Defendant  answered  admitting  the  making  of  the  contract  as  al- 
leged, and  the  completion  of  the  boiler  for  shipment,  but  alleged 
that  prior  to  such  completion  the  navigation  company  became  in- 
solvent ;  that  defendant  then  exercised  its  right  to  hold  the  boiler 
for  full  payment  of  the  purchase  money,  duly  notifying  said  company 
of  its  attitude  in  the  matter ;  that  thereafter,  the  navigation  company 
having  neglected  to  pay  for  the  property,  defendant  exercised  its 
legal  right  to  sell  the  same  for  the  account  of  such  company,  realiz- 
ing $150  over  and  above  the  amount  due,  which,  before  the  com- 
mencement of  this  action,  was  tendered  to  plaintiff',  who  refused  to 
accept  the  same. 

The  evidence  upon  the  trial  was  to  the  effect  that  the  breach  of 
contract  by  defendant,  in  failing  to  complete  the  boiler  for  shipment 
May  1,  1900,  was  waived;  that  the  navigation  company,  before  the 
boiler  was  ready  for  shipment,  became  insolvent  and  was  notified 
that  by  reason  thereof  the  boiler  would  not  be  shipped  in  advance  of 
full  payment  therefor;  that  the  boiler  was  such  that  there  were 
very  few  customers  for  it;  that  defendant  sold  it,  as  alleged  in  the 
answer,  because  of  the  vendee's  insolvency  and  its  neglect  to  take 
and  pay  for  the  property  as  required;  that  $150  was  realized  over 
and  above  the  amount  due  for  the  boiler,  after  paying  expenses  of 
sale.  No  complaint  was  made  in  the  case  but  that  a  fair  price  was 
obtained  for  the  boiler,  but  evidence  was  produced  to  show  that  a 
still  better  price  might  have  been  secured ;  that  the  property  was 
sold  for  $4,300  cash,  and  an  offer  of  $4,400,  $400  down  and  $1,000 
per  month  for  four  months  was  refused.  No  complaint  was  made 
by  evidence  in  the  case  as  to  the  manner  in  which  the  sale  was  ef- 
fected, in  that  it  was  at  private  sale,  except  that  defendant  allowed 
a  commission  to  the  person  who  acted  as  its  agent  in  the  matter, 
while  he  also  obtained  a  commission  from  the  purchaser. 

It  appeared,  however,  that  the  commission  was  reasonable  except 
for  the  fact  that  the  agent  took  pay  from  both  vendor  and  purchaser, 
and  further  that  defendant  allowed  the  commission  without  knowing 


Sec.  3)  RESALE    AND    RESCISSION  535 

that  the  agent  was  getting  pay  from  both  sides  of  the  trade.  There 
was  evidence  to  the  effect  that  the  navigation  company,  about  No- 
vember 1,  1900,  made  arrangements  with  a  party  to  take  and  pay 
for  the  boiler,  and  notified  defendant  that  it  was  ready  and  wilHng 
to  take  the  property  and  pay  the  sum  of  $3,067  as  the  balance  due, 
vv^hich  was  considerably  less  than  the  real  balance;  that  at  the  time 
of  such  offer  such  company  had  knowledge  that  arrangements  had 
been  partially  made  to  sell  the  boiler  to  other  parties,  that  it  was  on 
car  ready  for  shipment,  and  that  the  true  balance  due  would  have 
to  be  paid  by  November  10  or  the  property  would  go  forward  to 
the  proposed  purchaser;  that  upon  the  day  this  notice  was  sent  a 
boiler  inspector  from  Chicago,  representing  a  party  in  that  city,  ap- 
plied for  leave  to  inspect  the  boiler  and  was  refused  because  he  did 
not  present  any  evidence  of  authority  in  the  matter ;  that  several 
telegrams  passed  between  defendant  and  the  navigation  company, 
but  no  tender  of  payment  of  the  balance  due  was  made,  nor  was 
any  suggestion  made  that  the  company,  or  any  one  in  its  behalf  was 
ready  to  pay  the  true  balance  due;  that  after  the  company  was  noti- 
fied that  the  boiler  would  be  held  for  or  in  its  behalf  till  November 
10,  and  its  apparent  insistence  upon  taking  the  same  without  paying 
the  full  amount  due  therefor,  and  defendant  becoming  informed,  as 
it  supposed,  through  the  telegraphic  correspondence  with  its  agent 
and  the  navigation  company,  that  the  latter's  activity  was  to  aid  a 
rival  of  defendant's  proposed  purchaser  to  obtain  possession  of  the 
boiler,  it  withdrew  the  offer  to  hold  the  property  till  November  10, 
and  closed  the  deal  with  their  customer. 

The  verdict  was  for  plaintiff  for  $150.  Judgment  was  rendered 
accordingly. 

Marshall,  J.  The  view  we  talce  of  this  case  renders  some  of  the 
questions  discussed  in  the  briefs  of  counsel  unimportant,  if  not  en- 
tirely immaterial  to  the  vital  question  to  be  solved.  By  looking  at 
the  facts  disclosed  in  the  light  of  the  true  situation  of  parties  to 
an  executory  sale  contract,  authorizing  the  vendee  to  sell  the  sub- 
ject thereof  to  a  third  person,  and  the  purpose  and  effect  of  making 
such  sale,  the  case  will  appear  to  be  a  very  simple  one  and  the  as- 
signments  of   error   require  no   very   lengthy  treatment. 

If  a  person  contracts  to  sell  and  deliver  property  to  another  on 
credit,  not  retaining  any  lien  thereon,  specifically,  to  secure  the  pur- 
chase money,  the  presumption  is  that  he  acts  upon  the  belief  that 
the  latter  is  solvent,  and  on  condition  that  he  will  so  remain.  If 
there  is  a  breach  in  that  regard  before  control  of  the  property  passes 
to  the  buyer,  the  seller  may  withdraw  from  the  contract  the  element 
of  credit  and  insist  that  it  shall  stand  only  as  an  agreement  to  sell 
for  cash  upon  delivery  of  the  property,  and  that  the  contract  as  so 
modified  shall  be  executed;  and  upon  the  buyer's  neglect  or  refusal 
to  perform,  the  seller  may  have  a  choice  of  several  remedies  for  the 
wrong:    "The  seller  may  store  the  property  for  the  buyer  and  sue 


536  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE    GOODS  (Ch.  5 

for  the  purchase  price ;  or  may  sell  the  property  as  agent  for  the 
vendee  and  recover  any  deficiency  resulting;  or  may  keep  the  prop- 
erty as  his  own  and  recover  the  difference  between  the  contract  price 
and  the  market  price  at  the  time  and  place  of  delivery."  Van  Brock- 
len  v.  Smeallie,  140  N.  Y.  70,  75,  35  N.  E.  415. 

In  case  he  elects  to  take  the  second  remedy  mentioned,  the  sale 
of  the  property  is  but  a  mere  means  of  determining  the  precise  amount 
of  the  damages  caused  by  the  breach,  while  the  incidental  effect  is 
to  satisfy  the  loss  suft'ered  by  the  vendor  so  far  as  the  proceeds  of 
the  sale  will  accomplish  that  result.  Every  executory  contract  for 
the  sale  of  property  upon  credit  is  presumed  to  have  embodied  in  it 
the  features  referred  to.  Mechem,  Sales,  §  1647.  That  is  elemen- 
tary. It  is  a  mistake  to  suppose  that  when  an  executory  contract  of 
the  character  we  are  considering  has  been  once  rightfully  modified 
by  eliminating  therefrom  the  element  of  credit,  such  element  can  be 
revived  merely  by  subsequent  ability  of  the  executory  vendee  to 
pay  for  the  property.  Notwithstanding  such  subsequent  ability,  his 
rights  will  remain  the  same  as  if  the  contract  had  originally  con- 
templated cash  payment  to  the  vendor  upon  delivery  of  the  property. 

It  is  also  a  mistake  to  suppose  that  when  the  modified  contract  is 
once  breached  by  the  neglect  or  refusal  of  the  vendee  to  take  the 
property  and  pay  therefor  at  the  place  of  delivery,  giving  the  vendor 
the  right  to  proceed  to  recover  damages  for  the  wrong,  he  can  be 
debarred  from  pursuing  his  remedy  by  less  than  an  actual  tender  to 
him  of  the  amount  due  upon  the  contract.  Immediately  upon  the 
vendee's  refusing  or  neglecting,  when  required  to  do  so,  to  comply 
with  the  sale  contract  by  paying  for  the  property  and  accepting  de- 
livery thereof,  the  cause  of  action  of  the  vendor  becomes  complete 
and  his  right  to  enforce  the  same  by  such  appropriate  remedies  as  he 
may  elect  to  pursue  perfect. 

If  he  chooses  to  liquidate  his  damages  by  a  sale  of  the  property 
and  incidentally  to  recover  his  loss  so  far  as  the  proceeds  of  the  sale 
wull  effect  that  result,  failure  to  give  notice  of  the  intention  to  sell 
the  property,  and  failure  to  do  that  which  is  reasonably  necessary 
to  secure  the  best  price  obtainable  therefor,*  does  not  give  the  vendee 
any  right  to  rescind  his  contract,  but  renders  the  result  of  the  sale 
not  binding  on  him  as  to  the  amount  of  the  vendor's  loss  by  the 
former's  breach,  and  he  will  remain  liable  to  the  latter  for  the  full 
market  value  of  the  property  less  his  actual  damages,  independently 
of  the  sale.  The  sale  in  such  circumstances  is  but  a  method,  as  be- 
fore indicated,  of  enforcing  a  right  to  damages  for  breach  of  con- 
tract, and  of  making  evidence  of  the  precise  amount  of  such  dam- 
ages. The  sale,  when  properly  conducted,  the  executory  vendee  hav- 
ing been  so  notified  of  the  intention  to  make  it  as  to  give  him  rea- 
sonable opportunity  to  prevent  it  by  paying  his  debt,  constitutes  a 
basis,  binding  on  him,  for  computing  the  damages  for  which  he  is 
liable. 


Sec.  3)  RESALE    AND    RESCISSION  537 

The  rule  governing  the  subject  was  laid  down  in  T.  B.  Scott  Lum- 
ber Co.  V.  Hafner-Lothman  Mfg.  Co.,  91  Wis.  667,  65  N.  W.  513, 
in  these  words :  "If  a  resale  is  made  and  the  evidence  shows  that  all 
reasonable  efforts  were  made  to  secure  the  best  price  obtainable,  or 
that  the  price  obtained  was  a  fair  one,  it  settles  the  question  of  the 
market  value,  so  that  the  damages  become  liquidated." 

The  idea  is  that  when  the  executory  vendee  of  property  breaks 
his  agreement  to  take  and  pay  for  the  property,  the  measure  of  dam- 
ages is  the  difference  between  the  market  value  thereof  and  the  con- 
tract price ;  but  the  vendor  must  necessarily  establish  that  as  a  basis 
for  his  claim.  If  he  sues  for  his  damages  without  selling  the  prop- 
erty, or  without  selling  the  same  wath  proper  regard  to  the  rights  of 
the  executory  vendee,  he  takes  upon  himself  the  burden  of  establish- 
ing the  fair  market  value  of  the  goods  at  the  time  of  the  breach. 
So  it  is  said  that  notice  to  the  vendee  of  the  vendor's  intention  to 
make  the  sale,  and  the  sale,  with  proper  regard  to  the  interests  of  the 
former,  merely  create  definite  and  conclusive  evidence  of  such  market 
value.  T.  B.  Scott  Lumber  Co.  v.  Hafner-Lothman  Alfg.  Co.,  su- 
pra; Gehl  V.  Produce  Co.,  105  Wis.  573,  81  N.  W.  666;  Davis  Sul- 
phur Ore  Co.  V.  Atlanta  Guano  Co.,  109  Ga.  607,  34  S.  E.  1011; 
Mechem,  Sales,  §§  1649,  1650. 

There  is  no  controversy  here  but  that  the  Central  Navigation  & 
Construction  Company,  before  the  boiler  was  ready  for  delivery, 
became  hopelessly  insolvent.  Consequently  there  can  be  no  con- 
troversy but  that  respondent  had  the  right  to  withdraw  from  the 
contract  the  element  of  credit.  It  did  so.  There  is  also  no  controver- 
sy as  to  whether,  upon  that  being  done,  it  required  the  navigation 
company  to  comply  with  the  modified  agreement  by  a  day  named  or 
it  would  proceed  to  enforce  its  legal  remedy  for  the  breach  by  sell- 
ing the  boiler.  Manifestly,  at  that  stage  in  the  relations  between  the 
parties  there  was  but  one  way  for  the  navigation  company  to  prevent 
respondent  from  treating  the  contract  as  broken,  viz. :  by  complying 
w^ith  it;  and  but  one  way  of  doing  that,  viz.:  by  seasonably  tender- 
ing to  respondent  at  the  place  for  delivery  of  the  boiler,  the  balance 
of  the  agreed  purchase  money,  being  the  sum  of  $4,000.  Mere  abil- 
ity to  do  so,  or  the  making  of  an  arrangement  to  obtain  money  there- 
for, did  not  affect  respondent's  rights  in  the  slightest  degree. 

That  answers  effectually  appellant's  first  complaint  that  the  trial 
court  erred  in  rejecting  evidence  going  to  show  that  at  the  time  of 
the  resale  parties  stood  ready  to  advance  to  the  company  jnoney  nec- 
essary to  pay  for  the  boiler ;  also  the  second  assignment  of  error, 
that  the  court  should  have  directed  a  verdict  for  plaintiff  since  there 
w^as  no  right  to  sell  the  boiler  in  the  face  of  the  fact  that  the  navi- 
gation company  was  able  to  take  and  pay  therefor.  It  was  given 
ample  notice  that  the  property  would  be  sold  unless  the  full  amount 
of  $4,000  was  paid.  Not  only  was  payment  not  made  as  demanded, 
but  notice  was  sent  to  respondent  that  the  navigation  company  was 


538  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Ch.  5 

willing  to  pay  only  $3,067,  $933  less  than  the  amount  due.  The  sum 
and  substance  of  its  several  communications  to  respondent  prior  to 
the  resale  was  that  it  insisted  upon  taking  the  property  without  fully 
complying  with  the  modified  contract,  and  that  respondent  should 
desist  from  efforts  to  liquidate  its  damages  notwithstanding  no  tender 
was  made  of  the  full  amount  due  for  the  property.  It  seems  clear 
that  the  attitude  of  appellant's  assignor  was  such  that  respondent 
was  fully  justified  in  regarding  the  contract  with  such  assignor 
broken.  It  follows  that  it  had  the  legal  right  to  liquidate  its  dam- 
ages by  a  resale  of  the  property.  Timely  notice  to  such  assignor 
of  its  intention  to  do  so,  and  the  failure  of  such  assignor  to  respond 
by  tendering  the  amount  due  for  the  boiler,  was  sufficient  to  put  the 
latter  in  default.  Notice  of  the  time  and  place  of  the  sale  was  not 
necessary.     Mechem,  Sales,  §  1637. 

The  point  is  made  that  the  navigation  company  did  not  make  de- 
fault, because  it  had  the  right  to  inspect  the  boiler  before  paying 
therefor  and  that  it  was  not  allowed  to  do  so.  The  conclusive  an- 
swer to  that  is  that,  before  any  demand  in  that  regard  was  made, 
the  company  indicated,  as  before  shown,  a  willingness  to  pay  only 
$3,067  as  the  balance  due,  while  the  true  balance  was  $4,000,  and 
that  its  attitude  thenceforward  did  not  change,  and  that  no  sum 
whatever  was  actually  tendered  respondent. 

The  further  reason  is  suggested,  why  a  verdict  should  have  been 
directed  for  plaintiff,  that  the  navigation  company  was  not  given  a 
reasonable  time  to  take  the  boiler  after  the  element  of  credit  in  the 
executory  contract  was  eliminated ;  that  respondent  proceeded  with 
undue  haste  to  disable  itself  from  complying  with  the  modified  con- 
tract. That  position  seems  to  be  untenable  in  view  of  the  undis- 
puted fact,  several  times  alluded  to,  that  respondent  did  not  treat  the 
contract  as  broken  till  the  company,  in  response  to  the  former's  de- 
mand for  the  full  payment  of  the  balance  of  $4,000,  assumed  an 
attitude  in  eft'ect  refusing  to  pay  that  sum. 

It  is  further  suggested  that  respondent  breached  the  contract  and 
gave  the  navigation  company  a  right  to  rescind  and  sue  for  the  down- 
payment  on  the  boiler  because  of  the  sale  thereof  for  $4,300  cash 
in  the  face  of  an  oft'er  of  $4,400  part  cash  and  the  balance  on  time 
extending  over  four  months.  In  that  counsel  for  appellant  loses 
sight  of  the  fact  that  such  a  sale  is  primarily  to  make  evidence  of 
the  precise  amount  of  damages  suffered  by  the  breach  which  gives 
rise  to  the  right  to  make  the  sale.  Irregularities  in  procedure  to 
effect  the  sale  do  not  forfeit  the  right  of  sale,  but  render  the  result 
not  binding  on  the  parties  concerned  as  evidence.     That  is  all. 

The  rule  on  the  subject  was  clearly  worked  out,  as  it  seems,  in 
T.  B.  Scott  Lumber  Co.  v.  Hafner-Lothman  Mfg.  Co.,  supra,  thus  • 
"In  an  action  for  damages  for  refusal  on  the  part  of  the  vendee  to 
accept  goods  as  agreed  in  his  contract  of  purchase,  the  measure  of 
damages  is  the  difference  between  the  market  value  of  such  goods 


Sec.  3)  RESALE    AND    RESCISSION  539 

at  the  time  of  the  breach  and  the  price  the  vendee  agreed  to  pay ;  and 
when  a  sale  is  made  within  a  reasonable  time,  though  made  at  auc- 
tion, *  *  *  the  price  obtained  is  evidence  to  be  considered  on 
the  question  of  the  market  value  at  the  time  of  such  breach;  and 
if  a  resale  is  made  and  the  evidence  shows  that  all  reasonable  efforts 
were  made  to  secure  the  best  price  obtainable,  or  that  the  price  ob- 
tained was  a  fair  one,  it  settles  the  question  of  the  market  value  so 
that  the  damages  become  liquidated." 

In  the  light  of  that  the  record  does  not  disclose  any  reasonable 
ground  for  complaint  in  regard  to  the  manner  the  sale  was  conducted. 
There  is  no  controversy  but  that,  in  view  of  the  nature  of  the  prop- 
erty and  the  limited  number  of  customers  therefor,  a  private  sale, 
through  an  agent  competent  to  manage  such  a  transaction,  was 
proper;  and  there  is  no  evidence  that  the  amount  realized  was  not 
the  fair  market  value  of  the  boiler.  If  we  should  conclude  that  re- 
spondent did  not  proceed  in  a  way  reasonably  calculated  to  secure 
the  best  price  obtainable  for  the  property,  the  result  would  still  stand 
as  evidence  of  the  market  value  thereof  and  warrant  the  verdict  of 
the  jury,  since  there  was  no  opposing  evidence.  But  we  cannot  so 
conclude.  The  only  circumstance  pointed  to  as  indicating  that  the 
sale  was  not  fairly  conducted  is  that  a  cash  purchaser  was  accepted, 
while  a  customer  stood  ready  to  take  the  property  for  $100  more, 
paying  part  cash  and  the  balance  in  one,  two,  three,  and  four  months. 
That  point  is  hardly  worthy  of  serious  consideration.  Obviously, 
the  only  purpose  of  the  sale  being  to  make  evidence  of  market  value 
binding  upon  the  navigation  company,  a  cash  sale  was  the  only  one 
proper.  It  would  be  a  very  novel  proceeding  to  attempt  to  prove 
market  value  of  property,  as  between  parties  adversely  situated,  by 
what  the  property  would  sell  for  on  credit. 

There  is  a  further  assignment  of  error  in  that  the  court  refused 
to  permit  proof  that  the  failure  of  respondent  to  comply  with  its 
contract  on  time  tended  to  produce  the  insolvency  of  the  navigation 
company  and  its  consequent  inability  to  take  and  pay  for  the  boiler. 
The  insistence  of  the  navigation  company  upon  taking  the  property 
notwithstanding  the  breach  as  to  time  of  completing  it  waived  anv 
right  it  might  otherwise  have  had  to  rescind  the  contract.  That  seem.s 
plain.  That  left  it  bound  to  perform  the  contract  with  the  element 
of  credit  removed,  not  waiving,  however,  any  claim  it  might  have 
for  damages  because  of  respondent's  breach.  No  such  claim  for 
damages  was  suggested  upon  the  trial  as  an  excuse  for  not  paying 
the  full  amount  due  respondent  previous  to  the  sale,  nor  as  having 
been  assigned  to  appellant,  nor  as  having  any  existence  as  a  justifica- 
tion for  failure  to  take  the  property  according  to  the  contract. 

A  person  cannot  waive  his  right  to  rescind  a  contract  because  of 
a  breach  thereof  by  the  other  party  thereto,  and  at  the  same  time, 
rightfully,  himself  breach  it,  giving  such  other  a  right  to  a  remedy 
for  his   loss   occasioned  thereby,   and   then   rescind  the   contract  be- 


540  RIGHTS   OF    rXFAID    SELLER    AGAINST  THE   GOODS  (Cll.  5 

cause  such  other  invokes  such  remedy.  Benj.  Sales,  §  762.  The 
navigation  company  having  elected  to  stand  by  the  contract  not- 
withstanding the  breach  as  to  time  of  completing  the  boiler,  the 
right  of  respondent  was  not  impaired  to  enforce  it,  holding  the  com- 
pany liable  for  damages  for  any  breach  on  its  part,  and  being  liable 
to  the  company  for  any  damage  caused  to  it  by  a  violation  of  its 
right  as  regards  the  time  of  the  completion  of  the  boiler.  The  doc- 
trine of  election  of  remedies  applies,  that  one  having  been  chosen, 
all  others  are  deemed  waived.  Warren  v.  Landrv,  74  W'^is.  144.  42 
N.  \V.  247:  Crook  v.  Bank,  83  Wis.  31.  52  N.  W.  1131.  35  Am.  St. 
Rep.  17;  Bank  of  Lodi  v.  Washburn  Electric  Light  &  Power  Co., 
98  Wis.  547.  74  N.  W.  363;  Carroll  v.  Fethers.  102  Wis.  436,  7S 
N.  W.  604;  Barth  v.  Loetlelholtz.  108  \\'is.  562,  84  N.  W.  846;  Ful- 
ler-Warren Co.  V.  Harter,  110  Wis.  80.  85  N.  W.  698.  53  L..  R.  A. 
603.  84  Am.  St.  Rep.  867;  Clausen  v.  Head,  110  Wis.  405,  85  N.  W. 
1028,  84  Am.  St.  Rep.  933. 

Complaint  is  made  because  the  court  did  not  rule  that  respondent 
was  not  entitled  to  charge  the  navigation  company  with  $150  paid 
the  agent  who  sold  the  boiler,  since  he  also  took  pay  as  agent  of 
the  purchaser.  We  apprehend  it  would  be  a  sufficient  answer  to 
that  to  suggest  that  if  such  were  the  case  it  could  not  avail  appellants 
for  support  of  his  cause  of  action  for  damages  based  on  rescission 
of  the  contract ;  but  no  reason  whatever  is  perceived  why  respond- 
ent is  not  entitled,  under  the  circumstances,  to  charge  the  amount 
paid  its  agent  as  part  of  the  reasonable  expenses  of  converting  the 
boiler  into  money.  The  money  was  paid  in  the  honest  exercise,  with 
due  care,  of  the  right  to  sell  the  property,  and  that  satisfied  respond- 
ent's duty  to  the  navigation  company.  It  was  by  no  means  an  in- 
surer of  the  company's  interests.  It  was  only  required  to  proceed 
honestly,  using  all  the  care  that  could  be  reasonably  expected  under 
the  circumstances,  to  secure  the  best  price  obtainable  for  the  prop- 
erty. 

Error  is  predicated  on  the  refusal  of  the  trial  court  to  give  this 
instruction:  "In  so  selling  the  defendant  must  act  in  good  faith  and 
under  such  circumstances  as  will  be  best  calculated  to  produce  the 
fair  value  of  the  property.  In  determining  whether  such  sale  was 
made  in  good  faith  you  may  consider  the  absence  of  notice  to  the 
Central  Navigation  &  Construction  Company  of  the  time  and  place 
of  sale,  which  is  important,  and  tends  to  show  a  lack  of  the  good 
faith  required." 

That  was  properly  refused  upon  several  grounds :  (1)  Notice  of 
the  time  and  place  of  the  sale,  to  the  navngation  company,  was  not 
essential,  in  any  event,  as  regards  the  right  of  respondent  to  liquidate 
its  damages.  ^Nlechem,  Sales,  §  1637.  (2)  Since  it  was  proper  to 
sell  the  boiler  at  private  sale  (T.  B.  Scott  Lumber  Co.  v.  Hafner- 
Lothman  Mfg.  Co.,  supra),  notice  of  the  time  and  place  of  sale  was 
obviously  impracticable.     (3)  It  is  improper  to  state  to  a  jury  that 


k 


Sec.  3)  RESALE   AXD    EEiSCISSIOX  541 

any  particular  evidentiary  circumstance  is  important  as  bearing  upon 
the  existence  or  non-existence  of  some  material  disputed  fact,  unless 
that  is  so  as  a  matter  of  law;  and  such  was  not  the  case  in  tke  in- 
stance under  discussion. 

This  instruction  was  given,  and  error  assigned  thereon:  "If  from 
the  conduct  of  said  company  the  defendant  had  a  right  to  reasonably 
believe  that  said  company  did  not  intend  to  pay  said  sum,  or  were 
unable  to  pay  the  same,  then  you  may  find  that  they  were  acting  in 
good  faith  in  electing  to  sell  to  others." 

That  indicates  that  the  trial  court  did  not  have  a  very  clear  con- 
ception of  the  purpose  of  the  sale, — that  the  election  to  make  the 
sale  was  a  mere  indication  of  an  election  of  remedies, for  the  recov- 
er)- of  damages  for  a  breach  of  contract  Since  respondeat  had  a 
right  to  treat  the  contract  as  broken,  it  was  not  bound  to  consult  the 
navigation  company  at  all,  or  to  regard  its  interests  in  merely  choosing 
a  remedy  for  the  breach.  If  the  instruction  be  viewed  as  indicating 
that  respondent  was  burdened  with  any  condition  as  r^^ards  its  right 
to  make  a  choice  of  remedies,  it  was  manifestly  wrong,  but  noo- 
prejudicial  to  appellant.  If  it  be  viewed  as  referring  to  the  actioo  of 
respondent  in  treating  the  contract  of  the  navigation  compai^  as 
broken,  then  it  is  free  from  error,  since,  as  we  have  seen,  after  noti- 
fying the  company  that  cash  upon  delivery  of  the  property  would  be 
-;  -— -  ;".d  a  consummation  of  the  contract  in  that  way  insisted 
n  a  time  named,  the  compsoiy's  altitude  was  such  as  to 
indicai;         :  ::  refused  to  do  so. 

The  r.  used  language  to  the  jury  to  the  effect  that,  =::  :e  -z- 
sf   :  t  ected  to  sell  the  property,  though  it  was  bound  it 

the  £1  t  rceed  in  such  a  manner  as  was  reasonably  ci 

to  securr       t     est  price  obtainable  therefor,  it  was  not  bom: 
cept  the      r   rr       rice  offered  r^ardless  of  its  own  interests.  - 

as  the  rt  :  such  price  was  consistent  with  the  intercs:-  - 

naxigz'.  :   :  i.  y.     As  applied  to  the  facts  to  which  the  c;    :. 

dpubtediy    r  :     :    i     :    t     : -truction  was  certainly   free   fro-.        '    : 
Moreover,      r  :  ^     ny  error  in  it  as  the  statement  of 

stract  pr  :  :  Certainly,  re^mndent  was  not  o':    . 

accepi  ir.     r^r  ^  ' -^^ erty  <m  credit.     The  court  mk 

have  g: :-    :.r:    rr  }.i  respondent  was  not  bonne 

on  credit  at  all.     1/        _  t  the  sale  necessarily  ind. 

right  to  make  it  SC'  i?   :  -:  :he  property  into  money,  : 

mere  promises  to  pay  money. 

We  appir  -   '-'  ::    ^er^n'  v'     :: 

mind  that  - 

and   ch:         ,:  : 

breach     :;:      r  :      ^  r      :        :  .^ 

to  the  :      re:  T 
caused  by  :    r 
been   somev     ;. 


iOSS 


542  RIGHTS   OF    UNPAID    SELLER    AGAINST   THE   GOODS  (Cll.  5 

error  in  those  we  have  specially  referred  to,  or  any  of  the  others. 
Justice  seems  to  have  been  done  in  the  case. 
The  judgment  is  affirmed. -- 


BRIDGFORD  v.  CROCKER. 

(Court  of  Appeals  of  New  York,  1S75.     60  N.  Y.  627.) 

This  was  an  action,  among  other  things,  upon  a  check  drawn  by 
defendants'  firm,  and  transferred  to  plaintiff  by  the  payee,  upon  a 
contract  for  the  sale,  by  the  former,  to  Gavin  &  Kelly,  of  500  head 
of  cattle.  The  check  w'as  given  to  Gavin  to  purchase  cattle  for  de- 
fendants. The  trial  court  held,  that,  under  the  circumstances,  plain- 
tiff could  not  recover,  unless,  upon  proof,  that  defendants  assented 
to  the  use  made  of  the  check ;  and  submitted  this  question  to  the 
jury.  The  court  here  held,  that  the  evidence  was  sufficient  to  war- 
rant such  submission. 

Gavin  &  Kelly  received  all  of  the  cattle,  except  126  head ;  they 
paid  plaintiff,  including  the  check,  more  than  sufficient  to  pay  for 
the  cattle  delivered.  Plaintiff  claimed  damages  for  the  refusal  to 
receive  the  residue,  and  the  court  held  they  were  entitled,  as  dam- 
ages, to  the  dift'erence  between  the  market-value,  at  the  time  Gavin 
was  to  receive  them,  and  the  contract-price.  It  appeared  that  plain- 
tiff, after  holding  them  until  spring,  sold  them  at  an  enhanced  price. 
Defendants  claimed  the  benefit  of  the  sale.  Held,  that  the  ruling 
of  the  court  was  correct;  that  plaintiff'  had  the  election  either  to 
tender  the  cattle  and  recover  the  contract-price,  or  to  keep  the  cat- 
tle as  his  own,  and  recover  his  damages,  to  be  determined  in  ac- 
cordance with  the  rulings  of  the  court  (Dustan  v.  Andrews,  10 
Bosw.  [N.  Y.]  130,  questioned) ;  and  that  it  mattered  not,  and 
could  not  be  taken  into  consideration  what  plaintiff  received  upon 
a  subsequent  sale  of  the  cattle ;  if  the  cattle  rose  in  the  market, 
after  the  failure  to  perform,  the  plaintiff",  not  the  defendants,  was 
entitled  to  the  benefit  of  the  enhanced  value. 

GrovEr,  J.,  reads  for  affirmance.     All  concur. 

Judgment  affirmed. 

2  2  In  Wrigley  v.  Cornelius,  162  111.  92,  44  N.  E.  406  (1896).  Craig,  J.,  said: 
"There  may  be,  and  doubtless  are,  cases  where  the  vendor  would  be  reQuired 
to  give  the  vendee  notice  before  making  a  sale.  But  the  conduct  of  the  vendee 
may  be  such  that  notice  will  be  waived.  Where,  as  was  the  case  here,  there 
is  an  absolute  refusal  on  behalf  of  the  vendee  to  receive  the  goods,  and  the 
vendor  is  notified  to  do  what  he  may  choose  with  them,  no  notice  of  re-sale 
will  be  required."  Compare  Ridgley  v.  Mooney,  16  Ind.  App.  362,  45  N.  E. 
348  (1S96).     And  see  Williston,  Sales,  §  548. 


Ch.  6)  REMEDIES    OF   THE    SELLER  ON    THE    CONTRACT 

CHAPTER  VI 
REMEDIES  OF  THE  SELLER  ON  THE  CONTRACT 


543 


SECTION  1.— IN  GENERAL, 


ATKINSON  V.  BELL. 

(Court  of  King's  Bench,  1828.     8  Barn.  &  C.  277.) 
See  ante,  p.  89,  for  a  report  of  the  case. 


BEMENT  V.  SMITH. 

(Supreme  Court  of  New  York,  18.30.     15  Wend.  493.) 

This  was  an  action  of  assumpsit,  tried  at  the  Seneca  circuit  in 
November,  1834,  before  the  Hon.  Daniel  Moseley,  one  of  the  cir- 
cuit judges. 

In  March,  1834,  the  defendant  employed  the  plaintiff,  a  carriage 
maker,  to  build  a  sulky  for  him,  to  be  worth  ten  dollars  more  than 
a  sulky  made  for  a  Mr.  Putnam ;  for  which  he  promised  to  pay  $80, 
part  in  a  note  against  one  Joseph  Bement,  a  brother  of  the  plain- 
tiff, for  the  sum  of  ten  or  eleven  dollars,  and  the  residue  in  his 
own  note,  at  six  or  twelve  months,  or  in  the  notes  of  other  persons 
as  good  as  his  own.  In  June,  1834,  the  plaintiff  took  the  sulky  to 
the  residence  of  the  defendant,  and  told  him  that  he  delivered  it  to 
him,  and  demanded  pa3a'nent,  in  pursuance  of  the  terms  of  the 
contract.  The  defendant  denied  having  agreed  to  receive  the  car- 
riage. Whereupon  the  plaintiff  told  him  he  would  leave  it  with  a 
Mr.  De  Wolf,  residing  in  the  neighborhood;  which  he  accordingly 
did,  and  in  July,  1834,  commenced  this  suit.  It  was  proved  that  the 
value  of  the  sulky  was  $80,  and  that  it  was  worth  $10  more  than 
Putnam's.  The  declaration  contained  three  special  counts,  sub- 
stantially alike,  setting  forth  the  contract,  alleging  performance  on 
the  part  of  the  plaintiff,  by  a  delivery  of  the  sulky,  and  stating  a 
refusal  to  perform,  on  the  part  of  the  defendant.  The  declaration 
also  contained  a  general  count,  for  work  and  labor,  and  goods  sold. 

The  judge,  after  denying  a  motion  for  a  nonsuit,  made  on  the 
assumed  grounds  of  variance  between  the  declaration  and  proof, 
charged  the  jury  that  the  tender  of  the  carriage  was  substantially 
a  fulfillment  of  the  contract  on  the  part  of  the  plaintiff,  and  that 
he  was  entitled  to  sustain  his  action  for  the  price  agreed  upon  be- 


544  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  6 

tween  the  parties.  The  defendant's  counsel  requested  the  judge 
to  charge  the  jury  that  the  measure  of  damages  was  not  the 
value  of  the  sulky,  but  only  the  expense  of  taking  it  to  the  residence 
of  the  defendant,  delay,  loss  of  sale,  &c.  The  judge  declined  so 
to  charge,  and  reiterated  the  instruction  that  the  value  of  the  arti- 
cle was  the  measure  of  damages.  The  jury  found  for  the  plaintiff, 
with  $83.26  damages.  The  defendant  moved  for  a  new  trial.  The 
cause  was  submitted  on  written  arguments. 

Savage,  C.  J.  The  defendant  presents  no  defence  upon  the  mer- 
its. His  defence  is  entirely  technical,  and  raises  two  questions:  1. 
Whether  the  tender  of  the  sulky  was  equivalent  to  a  delivery,  and 
sustained  the  averment  in  the  declaration  that  the  sulky  was  deliv- 
ered; and  2.  Whether  the  rule  of  damages  should  be  the  value 
of  the  sulk}^,  or  the  particular  damages  to  be  proved,  resulting  from 
the  breach  of  the  contract.  There  is  no  question  raised  here  upon 
the  statute  of  frauds.  The  contract  is  therefore  admitted  to  be  a 
valid  one;  and  relating  to  something  not  in  solido  at  the  time  of 
the  contract,  there  is  no  question  of  its  validity. 

The  plaintiff  agreed  to  make  and  deliver  the  article  in  question 
'at  a  particular  time  and  place,  and  the  defendant  agreed  to  pay 
for  it,  on  delivery,  in  a  particular  manner.  The  plaintiff  made,  and, 
as  far  as  was  in  his  power,  delivered  the  sulky.  He  offered  it  to 
the  defendant  at  the  place  and  within  the  time  agreed  upon.  It 
was  not  the  plaintiff's  fault  that  the  delivery  was  not  complete,  that 
was  the  fault  of  the  defendant.  There  are  many  cases  in  which  an 
offer  to  perform  an  executory  contract  is  tantamount  to  a  per- 
formance.   This,  I  apprehend,  is  one  of  them. 

The  case  of  Towers  v.  Osborne,  1  Strange,  506,  was  like  this. 
The  question  here  presented  was  not  raised,  but  the  defendant  there 
sought  to  screen  himself  under  the  statute  of  frauds.  The  defend- 
ant bespoke  a  chariot,  and  when  it  was  made,  refused  to  take  it; 
so  far  the  cases  are  parallel.  In  an  action  for  the  value,  it  was  ob- 
jected that  the  contract  was  not  binding,  there  being  no  note  in 
writing,  nor  earnest,-  nor  delivery.  The  objection  was  overruled. 
In  that  case  the  action  was  brought  for  the  value,  not  for  damages 
for  the  breach  of  contract.  This  case  is  like  it  in  that  particular; 
this  action  is  brought  for  the  value,  that  is,  for  the  price  agreed 
on;    and  it  is  shown  that  the  sulky  was  of  that  value. 

The  case  of  Crookshank  v.  Burrell,  18  Johns.  58,  9  Am.  Dec.  187, 
was  an  action  in  which  the  plaintiff  declared  against  the  defend- 
ant on  a  contract  Avhereby  the  plaintiff"  was  to  make  the  woodwork 
of  a  wagon,  for  which  the  defendant  was  to  pay  in  lambs.  The 
defendant  was  to  come  for  the  wagon.  The  question  was  upon 
the  statute  of  frauds.  Spencer,  Ch.  J.,  states  what  had  been  held 
in  some  of  the  English  cases,  Clayton  v.  Andrews,  4  Burr.  2101, 
and  Cooper  v.  Elston,  7  T.  R.  14,  that  a  distinction  existed  between 


Sec.  1)  IN   GENERAL  545 

a  contract  to  sell  goods  then  in  existence,  and  an  agreement  for  a 
thing  not  yet  made.  The  latter  is  not  a  contract  for  the  sale  and 
purchase  of  goods,  but  a  contract  for  work  and  labor  merely. 

The  case  of  Crookshank  v.  Burrell  is  much  like  this,  with  this 
exception :  there  the  purchaser  was  to  send  for  the  wagon ;  here 
the  manufacturer  was  to  take  it  to  him.  There  it  was  held  that 
the  manufacturer  was  entitled  to  recover,  on  proving  that  he  had 
made  the  wagon  according  to  contract :  here  it  is  proved  that  the 
sulky  was  made,  and  taken  to  the  place  of  delivery  according  to 
contract.  The  merits  of  the  two  cases  are  the  same.  It  seems  to 
be  conceded  that  an  averment  of  a  tender  of  the  sulky  by  the  plain- 
tiff, and  a  refusal  of  the  defendant  to  receive  it,  would  have  been 
sufficient;  and  if  so,  it  seems  rather  technical  to  turn  the  plaintiff 
out  of  court,  when  he  has  proved  all  that  would  have  been  required 
of  him  to  sustain  his  action. 

The  plaintiff,  in  his  special  counts,  does  not  declare  for  the  sale 
and  delivery,  but  upon  the  special  contract;  and  herein  this  case 
is  distinguishable  from  several  cases  cited  on  the  part  of  the  de- 
fendant, and  shows  that  it  was  not  necessary  to  have  declared  for 
goods  bargained  and  sold.  It  seems  to  me,  therefore,  that  the  judge 
was  right  in  refusing  the  nonsuit,  and  in  holding  that  the  evidence 
showed  substantially  a  fulfillment  of  the  contract.  The  variance 
as  to  the  amount  of  Joseph  Bement's  note,  I  think,  is  immaterial ; 
but  if  otherwise,  it  may  be  amended.  The  alleged  variance  as  to 
the  price  of  the  sulky  is  not  sustained  by  the  facts  of  the  case. 

The  only  remaining  question,  therefore,  is  as  to  the  damages 
which  the  plaintiff  was  entitled  to  recover.  It  is  true  that  the 
plaintiff  does  not  recover  directly  as  for  goods  sold;  but  in  the 
case  of  Towers  v.  Osborne  the  plaintiff  recovered  the  value  of  the 
chariot,  and  in  Crookshank  v.  Burrell  the  recovery  was  for  the 
value  of  the  wagon.  The  amount  of  damages  which  ought  to  be 
recovered  was  not  the  question  before  the  court  in  either  of  those 
cases ;  but  if  the  value  of  the  article  was  not  the  true  measure,  we 
may  infer  that  the  point  would  have  been  raised.  Upon  principle, 
I  may  ask,  what  should  be  the  rule?  A  mechanic  makes  an  article 
to  order,  and  the  customer  refuses  to  receive  it :  is  it  not  right  and 
just  that  the  mechanic  should  be  paid  the  price  agreed  upon,  and 
the  customer  left  to  dispose  of  the  article  as  he  may?  A  contrary 
rule  might  be  found  a  great  embarrassment  to  trade.  The  me- 
chanic or  merchant,  upon  a  valid  contract  of  sale,  may,  after  re- 
fusal to  receive,  sell  the  article  to  another,  and  sue  for  the  difference 
between  the  contract  price  and  the  actual  sale.  Sands  &  Crump  v. 
Taylor  &  Lovett.  5  Johns.  395,  410,  411,  4' Am.  Dec.  374;  Langfort 
V.  Tiler,  1  Salkeld,  113,  6  Modern,  162. 

In  the  first  of  these  cases,  the  plaintiffs  sold  the  defendants  a 
cargo  of  wheat.  The  defendants  received  part,  but  refused  to  re- 
WooDW.  Sales — 35 


5-lG  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Cll.  <> 

ceive  the  remainder.  The  plaintiffs  tendered  the  remainder,  and 
gave  notice  that  unless  it  was  received  and  paid  for,  it  would  be  sold 
at  auction,  and  the  defendants  held  responsible  for  any  deficiency  in 
the  amount  of  sales.  It  was  held,  upon  this  part  of  the  case,  that  the 
subsequent  sale  of  the  residue  was  not  a  waiver  of  the  contract,  the 
I'endor  being  at  liberty  to  dispose  of  it  bona  fide,  in  consequence  of 
Jie  refusal  of  the  purchaser  to  accept  the  wheat.  This  case  shows  that 
where  there  has  been  a  valid  contract  of  sale,  the  vendor  is  entitled 
to  the  full  price,  whether  the  vendee  receive  the  goods  or  not.  I 
cannot  see  why  the  same  principle  is  not  applicable  in  this  case.  Here 
was  a  valid  contract  to  make  and  deliver  the  sulky.  The  plaintiff  per- 
formed the  contract  on  his  part.  The  defendant  refused  to  receive  the 
sulky.  The  plaintiff  might,  upon  notice,  have  sold  the  sulky  at  auc- 
tion, and  if  it  sold  for  less  than  $80,  the  defendant  must  have  paid  the 
balance. 

The  reason  given  by  Kent,  Ch.  J.,  5  Johns.  411,  4  Am.  Dec.  374. 
is  that  it  would  be  unreasonable  to  oblige  him  to  let  the  article  perish 
on  his  hands,  and  run  the  risk  of  the  insolvency  of  the  buyer.  But 
if  after  tender  or  notice,  whichever  may  be  necessary,  the  vendor 
chooses  to  run  that  risk  and  permit  the  article  to  perish,  or,  as  in  this 
case,  if  he  deposit  it  with  a  third  person  for  the  use  of  the  vendee, 
[he  certainly  must  have  a  right  to  do  so,  and  prosecute  for  the  whole 
price.  Suppose  a  tailor  makes  a  garment,  or  a  shoemaker  a  pair  of 
shoes,  to  order,  and  performs  his  part  of  the  contract,  is  he  not  entitled 
to  the  price  of  the  article  furnished?  I  think  he  is,  and  that  the 
plaintiff  in  this  case  was  entitled  to  his  verdict. 

The  question  upon  the  action  being  prematurely  brought  before  the 
expiration  of  the  credit  which  was  to  have  been  given,  cannot  prop- 
erly arise  in  this  case,  as  the  plaintiff  recovers  upon  the  special  con- 
tract, and  not  upon  a  count  for  goods  sold  and  delivered. 

New  trial  denied.^ 


GORDON  V.  NORRIS  et  al. 

(Supreme  Judicial  Court  of  New  Hampshire,  1870.     49  N.  H.  376.) 

Assumpsit,  by  Nathaniel  Gordon  against  John  L.  Norris  and  George 
B.  Neal,  on  account  annexed,  and  for  goods  sold  and  delivered  and 
goods  bargained  and  sold,  with  a  special  count  for  not  taking  and 
paying  for  a  quantity  of  hay  alleged  to  have  been  sold  by  the  plain- 
tiff to  the  defendants,  on  June  5,  1867,  at  $38  per  ton.  The  suit  was 
brought  January  30,  1868,  to  recover  the  price  of  twenty-seven  tons 
and  six  hundred  pounds  of  hay  sold,  after  deducting  the  sum  of  $500, 
advanced  towards  it  by  the  defendants.     *     *     *  2 

1  See  also  Hayden  v.  Demets,  53  N.  T.  426  (1873). 

-  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  1)  IN   GENERAL  547 

Sargi^nT,  J,  *  *  *  f  i-,g  remaining  question  is  as  to  the  rule 
of  damages  that  the  referee  should  have  adopted,  whether  in  finding 
upon  the  special  contract  as  we  assume  he  did,  he  should  have  allowed 
the  plaintiff  as  damages  the  whole  of  the  contract  price,  or  only  the 
difiference  between  the  contract  price,  and  the  market  price  at  the 
time  the  contract  was  broken. 

Sedgwick,  in  his  work  on  damages  (5th  Ed.)  page  312,  says: 

"When  the  vendee  is  sued  for  nonperformance  of  the  contract  on 
his  part,  in  not  paying  the  contract  price,  if  the  goods  have  been  de- 
livered, the  measure  of  damages  is  of  course  the  price  named  in  the 
agreement.  But  if  their  possession  has  not  been  changed,  it  has  been 
doubted  whether  the  rule  of  damages  is  the  price  itself,  or  only  the 
difference  between  the  contract  price  and  the  value  of  the  article  at 
the  time  fixed  for  its  delivery.  It  seems  to  be  well  settled  in  such 
cases,  that  the  vendor  can  resell  them  if  he  see  fit,  and  charge  the 
vendee  with  the  difiference  between  the  contract  price  and  that  real- 
ized at  the  sale. 

"But  if  the  vendor  does  not  pursue  this  course,  and  without  re- 
selling the  goods,  sues  the  vendee  for  his  breach  of  contract,  the  ques- 
tion arises,  which  we  have  already  stated,  whether  the  vendor  can 
recover  the  contract  price  or  only  the  difiference  between  that  price 
and  the  value  of  the  goods  which  remain  in  the  vendor's  hands,  and 
the  rule  appears  to  be  that  the  vendor  can  recover  the  contract  price 
in  full." 

He  cites  as  an  authority,  Graham  v.  Jackson,  14  East,  498;  which 
was  upon  a  special  contract  to  purchase  three  hundred  tons  of  Cam- 
peachy  log  wood  at  £35.  per  ton,  to  be  of  real  merchantable  quality, 
and  such  as  might  be  determined  to  be  otherwise  by  impartial  judges 
to  be  rejected.  Under  this  contract  the  plaintifif,  the  vendor,  had 
shipped  the  three  hundred  tons  of  log  wood  from  New  York  and 
tendered  it  to  the  purchaser  in  England.  It  was  held  that  under  that 
contract  and  the  circumstances  of  the  case,  the  vendee  was  bound  to 
take  so  much  of  the  wood  tendered  as  turned  out  to  be  of  the  sort 
described,  at  the  contract  price,  though  it  turned  out  upon  examina- 
tion that  sixteen  out  of  the  three  hundred  tons,  was  of  a  dififerent 
and  inferior  quality.  But  this  was  a  construction  given  to  that  par- 
ticular contract,  and  not  the  statement  of  any  general  principle,  to 
be  applied  to  all  cases. 

He  then  says :  "The  question  has  been  considered  in  New  York 
and  decided  in  the  same  way."  He  cites  Bement  v.  Smith,  15  Wend. 
493.  But  an  examination  of  that  case  shows,  that  the  decision  is  put 
upon  the  express  grounds  that  what  the  plaintiff  did  in  the  case 
amounted  to  a  delivery  of  the  property.  The  declaration  was  for 
work  and  labor  and  goods  sold,  and  also  upon  special  counts,  set- 
ting forth  the  contract  and  alleging  a  delivery  of  the  goods  by  plain- 
tifif.     This  cannot  be  an  authority  for  the  doctrine  claimed. 


oiS  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  ;^Ch.  6 

But  there  is  a  distinction  between  that  case,  and  the  ordinary  cases 
of  goods  sold  and  delivered,  which  is  alluded  to  in  the  opinion  viz., 
the  distinction  between  a  contract  to  sell  goods,  then  in  existence,  and 
an  agreement  to  furnish  materials  and  manufacture  an  article  in  a 
particular  way,  and  according  to  order,  which  is  not  yet  in  existence. 
The  latter  is  said  not  to  be  so  much  a  contract  for  the  sale  and  pur- 
chase of  goods,  as  a  contract  for  work  and  labor  merely,  and  it  is 
held  that  in  that  class  of  cases  the  statute  of  frauds  does  not  apply, 
when  there  is  nothing  paid  and  no  actual  delivery. 

In  a  large  class  of  cases  of  that  kind,  where  the  plaintiff  has  made 
surgical  instruments  of  a  particular  kind,  and  according  to  order,  for 
the  defendant  who  had  patented  the  same,  and  which  would  of  course 
be  worthless  in  the  hands  of  the  plaintiff,  or  where  a  tailor  had  made 
a  suit  of  clothes  to  order,  of  a  particular  description,  and  for  a  par- 
ticular measure,  or  a  shoemaker  had  made  boots  or  shoes  to  order 
and  of  a  particular  size  and  pattern,  or  the  carriage  maker  had  made 
a  carriage  in  the  same  way,  of  a  particular  style  and  pattern,  or  the 
artist  has  painted  a  portrait  of  an  individual  to  order,  or  an  engineer 
has  constructed  an  engine  according  to  order  for  a  particular  use, 
&c.,  though  the  mechanic  or  artist  may  sell  the  goods,  if  he  choose, 
and  recover  of  the  defendant,  the  difference  between  the  contract 
price,  and  the  price  for  which  the  article  was  sold,  yet  it  is  held  that 
he  may  if  he  choose,  when  he  has  fully  performed  his  part  of  the 
contract  and  tendered  the  article  thus  manufactured  to  the  defend- 
ant, or  offered  it  at  the  place  appointed,  recover  the  full  value  of  the 
article  and  leave  the  defendant  to  sell  or  use  or  dispose  of  the  article 
at  his  pleasure,  and  for  the  reason,  in  addition  to  that  already  stated 
that  the  article  thus  manufactured  for  a  particular  person,  or  accord- 
ing to  a  particular  pattern,  or  for  a  particular  use,  may  be  of  com- 
paratively little  value  to  any  body  else,  or  for  any  other  use  or  pur- 
pose, but  this  class  of  cases  are  recognized  as  exceptions  to  the  gen- 
eral rule,  which  is  to  be  applied  in  the  sale  of  ordinary  goods  or  mer- 
chandise W'hich  have  a  fixed  market  value.  Allen  v,  Jarvis,  20  Conn. 
38;  Bement  v.  Smith,  15  Wend.  (N.  Y.)  493,  and  cases;  Ballantine 
V.  Robinson,  46  Pa.  177. 

Mr.  Sedgwick  also  cites  a  case  from  Massachusetts  as  sustaining 
his  view.  Thompson  v.  Alger,  12  Aletc.  428.  But  an  examination 
of  the  case  shows  that  it  was  a  contract  for  the  purchase  and  sale  of 
railway  shares  and  that  there  had  been  a  part  payment  for  the  same, 
and  that  while  the  contract  was  in  force,  the  plaintiff  had  actually 
transferred  the  stock  on  the  books  of  the  company  to  the  vendee,  so 
that  the  plaintiff  had  actually  lost  his  title  to  the  shares,  and  upon 
this  special  ground  the  court  held  that  plaintiff'  was  entitled  to  re- 
cover the  contract  price.  But  in  that  case  it  is  stated  distinctly  that 
the  general  rule  in  that  state,  is,  that  in  contracts  for  the  sale  of  per- 
sonal property,  the  defendant  would  be  liable  to  pay  the  difference 


Sec.  1)  IN   GENERAL  549 

between  the  agreed  price  and  the  market  value  of  the  goods  on  the 
day  of  dehvery. 

Dewey,  J.,  in  the  opinion,  12  Mete.  (Mass.)  443,  says,  that  in  or- 
dinary cases  this  rule  would  do  entire  justice  to  the  vendor.  He  would 
retain  the  property  as  fully  in  his  hands  as  before,  and  a  payment 
of  the  difference  between  the  market  price  and  the  price  stipulated, 
would  fully  indemnify  him.  And  that  in  that  case,  if  the  defendant 
had  repudiated  the  contract  before  any  transfer  of  stock  had  been 
made  to  him  on  the  books  of  the  corporation,  that  rule  might  have 
been  properly  applied  here.  This  case  then  stands  upon  special 
grounds,  but  it  states  fully  and  plainly  what  the  general  rule  is  under- 
stood to  be  in  that  state,  and  is  by  no  means  an  authority  for  the 
doctrine  which  the  author  seeks  to  establish. 

Mr.  Sedgwick  admits  that  where  the  plaintiff  has  not  the  goods 
that  he  agrees  to  sell,  but  makes  a  side  contract  with  another  to  fur-/ 
nish  them,  he  will  only  be  allowed  to  recover  the  difference  between' 
the  original  contract  price  and  the  market  price  at  the  time  of  the 
offer  with  interest.  He  then  cites  some  authorities  where  goods  were 
sold  and  delivered,  to  be  paid  for  by  bill  or  note  payable  at  a  future 
day,  and  the  bill  or  note  is  not  given.  There  though  the  vendor  can- 
not maintain  assumpsit  for  the  goods  sold  and  delivered,  until  the 
term  of  credit  has  expired,  yet  he  may  sue  immediately  for  the  breach 
of  the  special  agreement,  and  may  recover  as  damages  the  whole  value 
of  the  goods.  But  that  does  not  militate  against  the  general  rule,  be- 
cause it  comes  under  another  general  rule,  that  when  the  goods  are 
sold  and  delivered,  the  contract  price  is  the  measure  of  damages. 

We  have  seen  that  the  general  rule  in  Massachusetts,  in  actions  for 
the  non-acceptance  of  property  sold  or  contracted  for,  is  the  differ- 
ence between  the  price  agreed  to  be  paid  for  it  and  its  real  value,  or 
market  price.    Thompson  v.  Alger,  12  Mete.  428,  443. 

Such  is  distinctly  stated  to  be  the  general  rule  in  Connecticut,  in 
Allen  V.  Jarvis,  20  Conn.  38 ;  and  in  Pennsylvania,  Girard  v.  Tag- 
gart,  5  Serg.  &  R.  19;  Ballentine  v.  Robinson,  46  Pa.  177;  and  in 
Wisconsin,  Ganson  v.  Madigan,  13  Wis.  67;  and  in  New  York,  Dana 
V.  Fiedler,  12  N.  Y.  41,  62  Am.  Dec.  130;  Orr  v.  Bigelow,  14  N.  Y. 
556;  Dey  v.  Dox,  9  Wend.  129,  24  Am.  Dec.  137;  Davis  v.  Shields, 
24  Wend.  322;  Stanton  v.  Small,  3  Sandf.  230;  Mallory  v.  Lord,  29 
Barb.  454,  465 ;  and  in  Missouri,  Whitmore  v.  Coates,  14  Mo.  9 ;  also, 
in  Kentucky,  Williams  v.  Jones,  1  Bush,  621,  627,  in  which  Hardin, 
J.,  delivering  the  opinion  says :  "The  true  measure  of  damages  for 
the  failure  to  receive  and  pay  for  property  contracted  for  is  not  the 
contract  price,  but  it  is  the  difference  between  the  contract  price  and 
the  actual  value  of  the  property,  when  it  should  have  been  received 
under  the  contract." 

So  in  a  contract  for  the  sale  of  railway  shares.  The  rule  of  dam- 
ages, which  either  party  is  entitled  to  recover,  is  the   difference  be- 


550  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  G 

tween  the  contract  price  and  the  market  price  at  the  time  of  dehvery. 
Red.  on  Rail.  (Ed.  of  1858)  54;    1  Red.  on  Rail.  132,  and  cases  cited. 

There  is  some  diversity  prevailing  in  regard  to  the  rule  of  damages 
for  breach  of  a  contract  for  the  sale  and  purchase  of  lands.  In  New 
York,  it  is  held  that  in  an  action  against  the  purchaser  for  not  receiv- 
ing a  deed  and  paying  for  lands  bargained  for,  the  damages  are  the 
whole  value  of  the  land,  though  the  purchaser  gets  no  title  to  it.  Rich- 
ards V.  Edick,  17  Barb.  260. 

But  such  is  not  the  rule  in  the  English  courts.  Laird  v.  Prince,  7 
Mees.  &  W.  474,  and  cases  cited.  Neither  is  such  the  rule  in  Massa- 
chusetts ;  for  though  there  are  dicta  favoring  the  New  York  rule, — in 
Sears  v.  Boston,  16  Pick.  357 ;  in  Gill  v.  Bicknell,  2  Cush.  358 ;  and 
in  Jacobs  v.  Railroad,  8  Cush.  223, — yet  the  question  is  directly  raised, 
considered  and  decided  in  Old  Colony  Railroad  v.  Evans,  6  Gray,  25, 
66  Am.  Dec.  394,  in  which  it  is  held  that  "upon  more  full  considera- 
tion of  the  question  of  the  measure  of  damages  in  an  action  at  law, 
when  the  defendant  has  refused  to  receive  the  deed  tendered  him,  the 
court  are  of  opinion  that  the  proper  rule  of  damages  in  such  a  case 
is,  the  difference  between  the  price  agreed  to  be  paid  for  the  land,  and 
the  salable  value  of  the  land  at  the  time  the  contract  was  broken." 

In  this  state  we  find  it  settled  in  Stevens  v.  Lyford,  7  N.  H,  360, 
that  upon  a  breach  of  a  contract  for  the  delivery  of  lumber,  the  pur- 
chaser was  entitled  to  recover  the  difference  between  the  value  of  the 
lumber  at  the  place  where  it  was  to  be  delivered,  and  the  sum  to  be 
paid.  And  in  Rand  v.  Railroad,  40  N.  H.  79,  it  is  assumed  that  the 
same  rule  would  apply  to  the  vendor,  and  that  the  proper  rule  of 
damages  in  case  the  subscriber  of  railroad  stock  refuses  to  pay  for 
and  receive  the  same,  when  no  certificate  of  the  stock  has  been  is- 
sued, would  be  the  difference  between  the  price  at  which  he  agreed 
to  take  the  stock,  and  its  actual  or  market  value  at  the  date  of  the 
breach  of  the  contract. 

And  in  McKean  v.  Turner,  45  N.  H.  203,  205,  Bellows,  J.,  in  com- 
menting upon  Rand  v.  Railroad,  supra,  says :  "There  the  claim  was 
upon  the  contract  of  the  trustee  to  take  and  pay  for  some  shares  in 
the  capital  stock  of  the  corporation,  which  shares  had  never  been  de- 
livered or  accepted.  The  measure  of  damages,  therefore,  was  the  dif- 
ference between  the  contract  price  and  the  actual  value  of  the  stock 
at  the  time  of  the  breach  of  the  contract,  and  ordinarily  the  market 
value  of  stock  can  readily  be  determined." 

In  the  case  before  us,  we  understand  from  the  case  that  the  referee 
found  that  the  property  had  not  passed  to  the  defendant.  It  was  not 
a  specific  article  of  property  that  had  been  manufactured  to  order  for 
the  defendant,  but  the  property  in  question  was  hay,  which  had  a 
market  value  easily  ascertainable.  Upon  the  finding  of  the  referee, 
as  we  understand  it,  this  property  remained  not  only  in  the  possession 
of  the  plaintiff  but  his  property. 


Sec.  1)  IN   GENERAL  551 

We  think  in  such  a  case,  it  would  be  in  accordance  with  the  great 
weight  of  authority,  besides  being  reasonable  and  just  in  itself,  to  hold 
that  the  rule  in  assessing  plaintiff's  damages,  would  be  to  give  him 
the  difference  between  the  contract  price  of  the  hay  and  its  market 
value,  at  the  time  when  the  defendant  should  have  received  and  paid 
for  it ;  taking  into  account,  of  course,  the  fact  that  by  the  contract 
the  plaintiff  was  to  draw  the  hay  to  the  depot  to  be  delivered,  which 
was  included  in  the  contract  price. 

According  to  the  provisions  of  the  case,  the  report  is  set  aside  and 
the  cause  recommitted  to  the  referee. 


TUFTS  v.  GREWER. 

(Supreme  Judicial  Court  of  Maine,  1891.    S3  Me.  407,  22  Atl.  382.) 

Peters,  C.  J.  It  becomes  immaterial  whether  the  writing  signed 
by  the  parties  in  this  case  be  considered  a  contract  of  sale  or  a  con- 
tract to  manufacture  an  article  upon  the  order  of  the  defendant,  in- 
asmuch as  we  feel  convinced  that  the  rule  of  damages  would  be  the 
same  in  this  state  whether  it  be  the  one  or  the  other  kind  of  contract. 

The  defendant  ordered  a  soda-fountain  of  the  plaintiff,  which  wa^ 
manufactured  and  tendered  to  him,  and  the  price  demanded.  It  is 
admitted  that  the  plaintiff  performed  all  the  requirements  of  the  coni 
tract  resting  on  him,  and  that  the  defendant  without  legal  excuse  failed 
to  perform  his  part  of  the  obligation,  utterly  refusing  to  pay  for  or 
accept  the  property.  The  action  is  special,  reciting  that,  although  the 
plaintiff  has  performed  his  promise,  the  defendant  refuses  to  perform 
his,  the  plaintiff  claiming  to  recover  for  the  breach  the  full  contract 
price  of  the  article  sold. 

The  general  rule  is  familiar  that  for  the  vendee's  failure  to  receivci 
and  pay  for  the  goods  he  has  contracted  for  the  vendor  may  recover! 
the  difference  between  the  market  value  at  the  time  and  place  stipu- 
lated for  delivery  and  the  contract  price,  together  with  the  expenses 
of  reselling  the  property.  The  general  rule  is  not  questioned,  but  the/ 
plaintiff  contends  that  a  special  and  more  equitable  rule  governs  when 
a  vendor  has  manufactured  the  article  after  a  particular  pattern  upon 
the  order  of  the  vendee,  who  refuses  without  excuse  to  accept  the 
same.  The  plaintiff  says :  "I  have  done  all  I  bargained  to  do,  and 
now  the  defendant  should  be  compelled  to  do  what  he  bargained  to 
do,  namely,  to  pay  the  contract  price." 

We  feel  that  there  is  force  in  the  plaintiff's  position,  supported  as  it 
is  by  considerable  authority ;  but  we  are  inclined  to  believe  that  there 
should  be  but  one  rule  of  damages  in  cases  where  a  vendee  refuses 
to  accept  goods  which  he  has  agreed  to  purchase,  whether  the  article 
to  be  delivered  to  the  vendee  is  already  in  existence  or  is  to  be  manu- 
factured on  his  account.     Wherein  does  the  general  rule  fail  to  fur- 


552  REMEDIES    OF    THE    SELLER   OX    THE    CONTRACT  (Ch.  6 

nish  an  efficacious  remedy?  The  vendor  was  to  receive  in  this  case 
money  and  notes.  While  the  law  fully  recognizes  the  obligation  of 
the  vendee,  and  cannot  require  specific  performance,  it  undertakes  to 
make  full  reparation  by  allowing  recovery  for  all  the  damages  sus- 
tained. What  difiference,  practically,  can  there  be  between  a  seller 
receiving  the  consideration  wholly  from  the  vendee  or  partly  from 
him  and  the  balance  from  some  one  else?  The  law  in  its  own  way 
obtains  for  the  vendor  an  equivalent  for  full  execution  of  the  contract. 

There  are  courts  which  have  held  that,  in  all  cases  where  a  vendee 
refuses  to  accept  the  goods  contracted  for  by  him,  the  vendor  may  re- 
cover the  contract  price  as  damages.  There  is  a  stronger  leaning 
among  judges  towards  the  distinction  set  up  in  the  present  case,  in  fa- 
vor of  applying  such  a  principle  only  when  the  contract  calls  for  an 
article  to  be  manufactured  especially  for  the  vendee.  The  ground 
upon  which  this  doctrine  is  defended  by  its  advocates  is  that  the  pe- 
culiarly manufactured  article  is  of  little  value  to  any  one  besides  the 
vendee,  if  of  any  marketable  value  whatever.  The  answer  to  this  posi- 
tion is,  of  course,  that  the  less  the  goods  are  worth  to  sell  in  the 
market  the  more  the  plaintiff  recovers,  and,  if  they  are  worth  noth- 
ing at  all,  then  he  recovers  the  full  contract  price.  But  such  a  re- 
sult is  just  as  logically  attainable  under  the  application  of  the  general 
as  by  any  special  rule.  The  great  ground  of  objection  to  the  rule  in- 
voked by  the  plaintiff  is  that,  where  there  has  been  no  acceptance  of 
:he  property,  the  title  still  remains  in  the  vendor,  liable  to  be  taken 
for  his  debts,  or  pass  to  his  assignee  in  bankruptcy,  or  be  sold  by  him 
to  another  purchaser.  A  tender  does  not,  in  our  law,  transfer  the 
:itle  to  the  vendee.  The  facts  show  that  the  plaintiff  was  to  retain 
title  to  the  fountain  until  the  price  should  be  paid.  But  the  defendant 
refused  to  make  the  partial  cash  payment  called  for  by  the  terms  of 
sale,  or  to  accept  any  possession  or  control  of  the  property,  so  that 
even  an  equitable  title  to  the  property  did  not  pass  to  him. 

The  rule  invoked  here  has  not  been  much  noticed  in  the  English  law, 
but  finds  its  principal  support  in  this  country,  and  still  even  here  it  will 
be  found,  we  think,  to  be  in  contradiction  of  most  of  the  authorities. 
The  first  case  in  this  country  sustaining  this  special  rule  was  Bement 
V.  Smith,  15  Wend.  (N.  Y.)  493.  In  Dustan  v.  Mc Andrew,  44  N.  Y. 
72,  although  the  case  called  for  no  such  classification,  the  opinion 
formulates  the  law  on  the  point  in  question  in  the  following  manner : 
(1)  The  vendor  may  store  or  retain  the  property  for  the  vendee,  and 
sue  him  for  the  entire  purchase  price ;  (2)  or  he  may  sell  the  prop- 
erty, acting  as  agent  of  the  vendee,  and  recover  the  difference  between 
the  contract  price  and  the  price  obtained  on  such  resale;  (3)  or  he 
may  keep  the  property  as  his  own,  and  recover  the  difference  between 
market  price  and  the  contract  price.  This  formulary  seems  to  have 
crept  into  several  text-books,  receiving  more  or  less  approbation  from 
the  authors.  The  special  rule  was  approved  in  Massachusetts,  as  lim- 
ited to  cases  where  the  article  to  be  sold  was  stock  in  a  corporation. 


Sec.  1)  IN   GENERAL 


553 


the  vendor  having  tendered  the  certificate  made  out  in  the  name  of 
the  vendee.  Thompson  v.  Alger,  12  Mete.  (Mass.)  428.  The  court 
there  said,  in  response  to  a  suggestion  that  the  general  rule  should  ap- 
ply: "Such  would  be  the  general  rule  as  to  contracts  for  the  sale  of 
personal  property,  and  such  rule  would  do  entire  justice  to  the  ven- 
dor. He  would  retain  the  property  as  fully  in  his  own  hands  as  be- 
fore, and  a  payment  of  the  difiference  between  the  market  price  and 
that  stipulated  would  fully  indemnify  him." 

The  most  exhaustive  case  cited  in  plaintiff's  behalf  is  Shawhan  v. 
Van  Nest,  25  Ohio  St.  490,  18  Am.  Rep.  313,  reported  also  with  a 
lengthy  editorial  note  in  15  Amer.  Law  Reg.  (N.  S.)  153.  The  opin- 
ion relies  for  support  largely  on  the  case  of  Bement  v.  Smith,  supra, 
and  Ballentine  v.  Robinson,  46  Pa.  177.  The  author  of  the  note  re- 
ferred to,  after  quoting  from  Laubach  v.  Laubach,  7Z  Pa.  392,  as  hold- 
ing a  doctrine  at  variance  with  the  preceding  Pennsylvania  case,  closes 
his  observations  with  the  following:  "It  must  be  admitted  that  Ballen- 
tine V.  Robinson,  and  Bement  v.  Smith,  and  the  principal  case,  can 
only  be  reconciled  with  what  appears  to  be  the  general  line  of  the  au- 
thorities, by  saying  that  in  them  tender  by  the  vendor,  or  conduct 
amounting  to  an  acceptance  upon  the  part  of  the  vendee,  was  consid- 
ered to  have  passed  the  property  in  the  goods  to  the  latter.  In  the 
contract  upon  which  the  principal  case  was  brought,  the  plaintiff's  shop 
was  fixed  as  the  place  of  delivery,  and  it  might  be  argued  that  the 
completion  of  the  carriage  at  the  time  and  place  appointed  amounted 
to  delivery.  But  the  unqualified  position  laid  down  in  the  rule  that, 
when  the  vendee  refuses  to  receive  the  goods  upon  tender,  the  vendor 
may  store  or  retain  them,  and  sue  for  the  contract  price,  though  adopt- 
ed by  Sedgwick  and  Parsons,  does  not  seem  borne  out  by  the  author- 
ities." Since  this  note  was  written,  the  editors  of  the  seventh  edition 
of  Sedgwick  on  Damages  say  in  note,  (volume  1,  p.  596:)  "We  do 
not  think  the  distinction  taken  in  Shawhan  v.  Van  Nest  can  be  sup- 
ported." It  is  also  said  in  note  on  same  page:  "This  [the  doctrine  of 
the  text]  now  is  held  to  be  the  proper  rule  only  where  the  title  has 
passed."  See  numerous  cases  cited  in  note,  Benj.  Sales,  (7th  Ed.)  § 
758. 

A  formidable  barrier  against  the  plaintiff's  recovery  upon  the 
theory  of  damages  claimed  by  him  is  that  the  question  has  been  vir- 
tually decided  in  this  state  against  such  theory.  In  Atwood  v.  Lucas, 
53  Me.  508,  89  Am.  Dec.  713,  it  was  held  that  an  action  of  assumpsit 
for  goods  sold  and  delivered  cannot  be  sustained  where  the  goods 
have  not  been  accepted  by  the  vendee.  In  Moody  v.  Brown,  34  Me. 
107,  56  Am.  Dec.  640,  it  was  held  that  such  an  action  would  not  lie, 
although  the  articles  claimed  to  be  sold  were  manufactured  after  a 
peculiar  pattern  for  the  special  use  of  the  vendee,  who  refused  to  ac- 
cept them  when  tendered  to  him.  In  the  latter  case  the  action  did  not, 
as  the  present  action  does,  allege  a  claim  against  the  defendant  for 
damages  for  not  accepting  and  paying  for  the  goods,  but  went  upon 


554  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  6 

the  theory  of  goods  sold  and  title  passed.  But  no  question  of  pleading 
was  discussed  in  the  case,  and  the  opinion,  taking  no  objection  to  the 
declaration,  determines  that  upon  the  facts  in  proof  no  more  damages 
were  recoverable  than  the  difference  between  contract  price  and  market 
value.  The  case  was  decided  on  the  legitimate  effect  of  the  facts,  and 
not  upon  the  form  of  the  action.  The  court  dissents  from  the  doctrine 
of  the  case  of  Bement  v.  Smith,  15  Wend.  (N.  Y.)  493,  before  cited, 
as  wrong  in  principle,  and  contradictory  "to  the  result  of  the  best  con- 
sidered cases." 

But  then  we  are  confronted  with  the  case  of  Oatman  v.  Walker,  33 
Me.  67,  where  the  plaintiff  was  allowed  to  recover  against  the  defend- 
ants the  contract  price  of  land  which  they  had  agreed  to  purchase  of 
the  plaintiff,  afterwards  repudiating  their  contract.  The  facts  do  not 
appear  to  be  fully  reported,  but  it  looks  like  a  case  where  the  defend- 
ants were  to  repurchase  a  parcel  of  land  they  had  conveyed  to  the 
plaintiff,  thereby  rescinding  a  former  contract.  Such  a  case  may  be 
an  exception  to  the  general  rule.  Laubach  v.  Laubach.  73  Pa.  387,  be- 
fore cited.  The  opinion  in  a  few  words  merely  follows  the  case  of 
Alna  V.  Plumiiier,  4  Me.  (4  Greenl.)  258,  where  the  same  rule  was 
adopted  without  argument  or  explanation,  and  barely  with  words  from 
either  counsel  or  court.  In  both  cases  the  decision  was  an  assumption 
merely.  The  case  of  Railroad  Co.  v.  Evans,  6  Gray  (Mass.)  25,  66 
Am.  Dec.  394,  strongly  antagonizes  those  cases,  the  opinion  in  the 
case  citing  a  long  list  of  authorities  in  support  of  a  contrary  doctrine. 

Exceptions  sustained.^ 

Walton,  Virgin,  Libbey,  Haskell,  and  Whitehouse,  ]].,  con-, 
curred. 


PUTNAM  v.  GLIDDEN. 

(Supreme  .Tiulicial  Court  of  Massachusetts,  1893.     159  Mass.  47,  34  N.  E.  81, 

38  Am.  St.  Rep.  394.) 

Contract  to  recover  for  the  keeping,  care,  etc.,  of  one  pair  of  horses, 
from  June  16,  1890,  to  October  17,  1891.  The  case  was  submitted  to 
the  Superior  Court,  and,  after  judgment  for  the  plaintiff,  to  this  court, 
on  appeal,  on  agreed  facts,  in  substance  as  follows. 

On  June  16,  1890,  the  plaintiff,  who  was  then  the  owner  of  the 
horses,  had  negotiations  with  the  defendant  in  relation  to  a  sale  of 
them,  by  which  they  were  delivered  by  the  plaintiff  at  the  defendant's 
stable  in  Lowell. 

The  plaintiff  contended  that  the  negotiations  so  made,  and  the  de- 
livery, amounted  to  an  absolute  sale. 

The  defendant  contended  that  the  sale  was  subject  to  the  approval 

3A  recent  good  '^ase  in  support  of  the  same  view,  is  Trinidad  Asphalt  Mfg. 
Co.  V.  Buekstaff  Bros.  Affg.  Co.,  86  Neb.  623,  126  N.  W.  293,  136  Am.  St.  Rep. 
710  (1910). 


Sec.  1)  IN   GENERAL  555 

of  his  veterinary  surgeon,  who  was  to  examine  the  horses  and  repoit 
whether  or  not  they  were  sound. 

On  June  17  the  defendant  returned  the  horses  to  the  plaintiff's  sta- 
ble, contending  that  his  veterinary  surgeon  reported  one  of  the  horses 
to  be  unsound,  and  that  he  had  a  right  to  return  them  under  the  con- 
tract. The  plaintiff  on  the  next  day  delivered  to  the  defenilant  the 
following  notice  in  writing : 

"You  are  hereby  notified  that  the  pair  of  horses  sold  by  me  to  you 
on  Monday,  the  16th  day  of  June  current,  and  on  that  day  delivered 
to  you,  for  the  sum  of  eight  hundred  dollars,  and  which  were  returned 
by  you  to  my  stable  on  Tuesday,  the  17th  day  of  June  current,  are 
still  at  my  stable,  but  as  your  property  and  not  as  my  own ;  that  said 
horses  are  subject  to  your  order  and  control;  that  any  expense  I  am 
at  in  keeping  said  horses  and  for  medical  attendance  on  one  of  them 
on  account  of  an  injury  received  by  it  after  they  were  delivered  to 
you  and  while  in  your  possession,  I  shall  charge  to  you  and  seek  to 
recover  the  same  of  you  in  addition  to  the  agreed  price  of  eight  hun- 
dred dollars. 

"You  are  further  requested  to  remove  said  horses  from  my  prem- 
ises, and  are  hereby  notified  that  the  same  are  at  my  stable  at  your 
risk,  and  that  I  shall  not  be  responsible  for  any  accident  or  injury  to 
them." 

The  plaintiff  brought  an  action  of  contract  against  the  defendant 
for  the  purchase  price  of  the  horses  under  the  sale  referred  to,  on 
June  21,  1890,  and  the  cause  came  to  trial  in  the  Superior  Court  for 
the  County  of  Middlesex,  at  the  September  term,  1891,  when  a  ver- 
dict and  judgment  were  rendered  for  the  plaintiff  for  the  contract  price, 
and  the  defendant  paid  the  amount  of  said  judgment  and  costs;  and 
on  said  October  17  the  defendant  called  for  the  horses  at  the  plain- 
tiff's stable,  and  the  plaintiff  delivered  them  to  the  defendant. 

The  action  above  mentioned  was  solely  to  recover  the  contract  price, 
and  during  the  time  the  plaintiff  kept  the  horses  they  were  not  used  by 
him. 

If  upon  the  above  facts  the  plaintiff  was  entitled  to  recover  for  keep- 
ing the  horses  during  the  above  mentioned  period,  then  judgment  was 
to  be  entered  for  the  sum  of  five  hundred  and  thirty-two  dollars.  If 
the  plaintiff  was  entitled  to  recover  for  the  care  and  keeping  during 
such  time  only  as  would  enable  the  plaintiff  to  resell  the  horses  to  ad- 
vantage, then  it  was  agreed  that  twenty-one  days  from  and  after  June 
17,  1890,  would  give  the  plaintiff  a  reasonable  time  in  which  to  make 
the  sale,  and  judgment  was  to  be  entered  for  the  sum  of  thirty-five 
dollars;   otherwise,  judgment  was  to  be  entered  for  the  defendant. 

KnowlTon,  J.  On  the  agreed  statement  of  facts  in  this  case,  the 
question  is  whether  the  law  implies  a  contract  on  the  part  of  the  de- 
fendant to  pay  for  the  keeping  of  the  horses.  The  burden  of  proof  is 
on  the  plaintiff,  and  no  inferences  of  fact  can  be  drawn  in  his  favor. 
Railroad  Co.  v.  Wilder,  137  Mass.  536. 


556  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  G 

It  has  been  said  that  when  a  vendee  returns  or  declines  to  receive 
property  sold  him  the  vendor  has  his  choice  "of  either  one  of  three 
methods  to  indemnify  himself :  First,  he  may  store  or  retain  the 
property  for  the  vendee,  and  sue  him  ior  the  entire  purchase  price; 
second,  he  may  sell  the  property,  acting  as  an  agent  for  this  purpose 
of  the  vendee,  and  recover  the  difference  between  the  contract  price 
and  the  price  obtained  on  such  resale ;  or,  third,  he  may  keep  the  prop- 
erty as  his  own,  and  recover  the  dift'erence  between  the  market  price 
at  the  time  and  place  of  delivery  and  the  contract  price."  Dustan  v. 
McAndrew,  44  X.  Y.  72,  78;  Haines  v.  Tucker,  50  N.  H.  313;  Gir- 
ard  V.  Taggart,  5  Serg.  &  R.  (Pa.)  19,  9  Am.  Dec.  327;  Rosenbaum 
V.  Weeden,  59  Va.  785,  98  Am.  Dec.  7V7  \  Holland  v.  Rea,  48  Mich. 
218,  224,  12  N.  \V.  167;  Cook  v.  Brandeis,  3  Mete.  (Ky.)  555;  Bag- 
ley  V.  Findlay,  82  111.  524. 

Where  the  vendee  contends  that  the  property  is  not  his,  and  treats 
it  as  belonging  to  the  vendor,  and  the  vendor  elects  to  keep  it  for  the 
vendee,  and  sue  for  the  entire  contract  price,  there  is  no  implied  con- 
tract on  the  part  of  the  vendee  to  pay  the  vendor  the  expense  of  keep- 
ing it.  Whiting  v.  Sullivan.  7  Mass.  107;  Earle  v.  Coburn,  130  Mass. 
596.  In  such  cases,  when  there  is  a  controversy  about  the  title,  the 
election  of  the  vendor  to  take  care  of  the  property  is  often  more  for 
his  own  benefit,  in  view  of  the  risk  that  the  main  question  in  dispute 
may  be  decided  against  him.  than  for  the  benefit  of  the  vendee,  and 
the  attitude  of  the  vendee  is  equivalent  to  an  express  prohibition  of 
the  keeping  on  his  account  and  at  his  expense.  If  the  vendor  wishes 
to  avoid  the  expense  of  keeping,  and  at  the  same  time  to  avail  him- 
self of  the  value  of  the  property,  he  may  sell  under  an  implied  agency 
for  the  vendee,  and  sue  for  the  balance  above  what  he  obtains  after 
paying  the  reasonable  expenses. 

In  the  present  case  the  plaintiff  elected  to  sue  for  the  entire  con- 
tract price,  and  in  the  opinion  of  a  majority  of  the  court  there  is  no 
principle  of  law  which  permits  him  now  to  maintain  a  second  suit  for 
the  expense  of  keeping  the  horses,  either  during  the  whole  time  while 
the  litigation  was  pending,  or  for  that  part  of  it  which  would  have 
been  required  to  enable  him  properly  to  dispose  of  the  horses  if  he 
had  chosen  to  sell  them  on  the  defendant's  account,  and,  after  apply- 
ing the  proceeds,  to  sue  for  the  balance  due  him. 

Judgment  for  the  defendant.* 

*  See  criticism  of  this  case  in  Williston.  Sales,  §  559. 


Sec.  2)  •  IN  "coNDiTiOxXAL  sales"  557 

SECTION  2.— IN  "CONDITIONAL  SALES" 


WHITE  et  al.  v.   SOLOMON. 

^Supreme  Jurlidal  Court  of  Massachusetts.  1S95.     164  Mass.  516,  42  N.  E.  104, 

30  L.  R.  A.  5.37.) 

Holme;s,  J.^     This  is  an  action  upon  the  f oUoAving  contract : 
"White's  Physiological  Manikin. 

"Place  and  date:    75  Court  Street,  Boston,  Mass.,  June  7,  1889. 

"Messrs.  J.  T.  White  &  Co.,  Publishers,  New  York— Gentlemen : 
Please  deliver,  according  to  shipping  directions  given  below,  one 
White's  Physiological  Manikin,  Medical  Edition,  price  $35.00.  In 
consideration  of  its  delivery  for  me,  freight  prepaid,  at  the  express 
ofifice  specified  below,  I  promise  to  pay  the  sum  of  $35.00,  as  follows: 
$10.00  upon  delivery  at  the  express  ofifice,  and  the  balance  in  monthly 
payments  of  $5.00,  each  payable  on  the  first  of  each  and  every  month 
thereafter,  until  the  whole  amount  is  paid,  for  which  the  publishers 
are  authorized  to  draw  when  due. 

"It  is  expressly  hereby  agreed  that,  in  case  of  the  failure  to  pay  any 
one  of  the  said  installments  after  maturity  thereof,  all  of  said  install- 
ments remaining  unpaid  shall  immediately  become  due  and  payable, 
and  the  said  James  T.  White  &  Co.  may  take,  or  cause  to  be  taken, 
the  said  manikin  from  the  possession  of  the  said  [subscriber]  or  their 
representatives,  to  whom  he  may  have  delivered  the  same,  without  re- 
course against  said  James  T.  White  &  Co.  for  any  money  paid  on  ac- 
count thereof ;  it  being  expressly  agreed  that  the  money  paid  on  ac- 
count shall  be  for  the  use  and  wear  of  said  manikin. 

"Shipping  directions  (to  be  filled  out  by  the  agent): 

"To  whom  sent,  J.  M.  Solomon,  75  Court  Street. 

"Town,  Boston.     County  of  Suffolk. 

"State,  Massachusetts. 

"James   M.   Solomon,  75   Court   Street. 

"Agent,  W.  F.  Byrd." 

There  was  evidence,  and  we  must  assume  the  judge  who  tried  the 
case  to  have  found,  that  the  manikin  was  delivered,  as  agreed,  to  the 
express  company,  freight  prepaid;  that  the  defendant  refused  to  re- 
ceive it ;  that,  in  consequence,  the  express  company,  after  a  time,  left 
the  manikin  at  the  plaintiffs'  place  of  business,  in  pursuance  of  a  rule 
of  the  company,  and  without  the  plaintiffs'  assent;  and  that  it  is  held 
subject  to  the  defendant's  order.  There  had  been  no  repudiation  of 
the  contract  by  the  defendant  before  the  delivery  of  the  manikin  at 
the  express  office. 

5  Part  of  the  opinion  is  omitted. 


558  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  (> 

The  main  question  is  whether  the  judge  who  tried  the  case  ought 
to  have  ruled  that  "the  plaintiffs  are  not  entitled  to  recover  the  price 
',  of  the  article  in  question,  but  must  offer  evidence  to  the  court  upon 
;  jthe  question  of  damages  for  the  alleged  breach  of  said  contract."     A 
'  majority  of  the  court  are  of  opinion  that  this  ruling  properly  was  re- 
'•  fused.     We  assume   in   favor  of  the   defendant,  but  without  decid- 
ing, that  the  title  to  the  manikin  did  not  pass  by  delivery  at  the  ex- 
press office;    but  that  assumption  does  not  dispose  of  the  case.     In 
an  ordinary  contract  of   sale,  the  payment  and  the  transfer  of  the 
goods  are  to  be  concurrent  acts;    and  if  the  buyer  refuses  to  accept 
the  goods,  even  wrongfully,  he  cannot  be  sued  for  the  price,  because 
the  event  on  which  he  undertook  to  pay  the  price  has  not  happened ; 
and,  although  the   fact  that  it  has  not  happened  is  due  to  his  own 
wrong,  still  he  has  not  promised  to  pay  the  price  in  the  present  situa- 
tion, but  must  be  sued  for  his  breach  of  contract  in  preventing  the 
event  on  which  the"  price  would  be  due  from  coming  to  pass.     The 
damages  for  such  a  breach  necessarily  would  be  diminished  by  the  fact 
that  the  vendor  still  had  the  title  to  the  goods. 

But  in  the  case  at  bar  the  buyer  has  said  in  terms  that  although 
the  title  does  not  pass  by  the  delivery  to  the  express  company,  if  it 
does  not,  delivery  shall  be  the  whole  consideration  for  an  immediate 
debt  (partly  solvendum  in  futuro),  of  the  whole  value  of  the  manikin, 
and  that  the  passing  of  the  title  shall  come  as  a  future  advantage  to 
him  when  he  has  paid  the  whole.  The  words  "in  consideration  of  its 
delivery"  are  not  accidental  or  insignificant.  The  contract  is  care- 
j  fully  drawn,  so  far  as  to  make  clear  that  the  vendors  intend  to  re- 
I  serve  unusual  advantages  and  to  impose  unusual  burdens.  We  are 
I  not  to  construe  equities  into  the  contract,  but  to  carry  it  out  as  the 
'  parties  were  content  to  make  it.  If  a  man  is  willing  to  contract  that 
he  shall  be  liable  for  the  whole  value  of  a  chattel  before  the  title 
passes,  there  is  nothing  to  prevent  his  doing  so,  and  thereby  binding 
himself  to  pay  the  whole  sum.  See  the  observations  of  Blackburn,  J., 
in  Martineau  v.  Kitching,  L.  R.  7  Q.  B.  436,  455.  Benj.  Sales  (4th 
Ed.)  716,  717.  When,  as  here,  all  the  conditions  have  been  com- 
plied with  the  performance  of  which  by  the  terms  of  the  contract  en- 
titles the  vendors  to  the  whole  sum,  if  the  vendors  afterwards  have 
not  either  broken  the  contract  or  done  any  act  diminishing  the  rights 
given  them  in  express  words,  the  buyer  cannot,  by  an  act  of  his  own 
repudiating  the  title,  gain  a  right  of  recoupment,  or  otherwise  dimin- 
ish his  obligation  to  pay  the  whole  sum  which  he  has  promised.  See 
Smith  v.  Bergengren,  153  Mass.  236,  238,  26  N.  E.  690.  10  L.  R.  A. 
768. 

If  the  first  payment  of  $10  upon  delivery  were  to  be  made  upon  de- 
livery to  the  buyer,  it  well  may  be  that,  if  the  buyer  refused  to  ac- 
cept the  manikin  or  to  pay  the  SIO,  the  sellers"  only  remedy  would  be 
for  a  breach,  and  that  they  could  not  leave  the  manikin  at  his  house, 


Sec.  2)  IN  "conditional  sales"  559 

and  waive  the  payment  against  his  will,  with  the  result  of  making  the 
whole  sum  due.  But  here  the  delivery  is  to  be  to  an  express  company, 
and  the  provision  for  payment  of  $10  "upon  delivery  at  the  express 
office"  must  mean  after  the  delivery ;  so  that  the  delivery  is  the  first 
act,  and  by  itself,  without  more,  fixes  the  rights  of  the  vendors  to  the 
price,  just  as  the  transfer  of  the  stock  did  in  Thompson  v.  Alger,  12 
Mete.  428,  444.  Our  decision  is  in  accord  with  the  following  cases 
(we  know  of  no  decisions  to  the  contrary) :  Safe  Co.  v.  Emanuel,  21 
Abb.  N.  C.  (N.  Y.)  181;  Brewer  v.  Ford,  54  Hun,  116,  120,  7  N.  Y. 
Supp.  244;  Id.,  59  Hun,  17,  19,  12  N.  Y.  Supp.  619;  Id.,  126  N.  Y. 
643,  27  N.  E.  852;  Carnahan  v.  Hughes,  108  Ind.  225,  9  N.  E.  79. 
See,  further,  Burnley  v.  Tufts,  66  ^liss.  48,  5  South.  627,  14  Am. 
St.  Rep.  540;  Tufts  v.  Griffin,  107  N.  C.  47,  12  S.  E.  ^8,  10  L.  R.  A. 
526,  22  Am.  St.  Rep.  863.  But  compare  Tufts  v.  Grewer,  83  Me. 
407,  22  Atl.  382;  Swallow  V.  Emery,  111  Mass.  355,  357.  *  *  * 
Exceptions  overruled.® 


BAILEY  V.  HERVEY  et  al. 
('Supreme  Judicial  Court  of  Massachusetts,  1SS3.     13.5  Mass.  172.) 

Tort,  against  William  H.  Hervey  and  Charles  H.  Pray,  copartners 
doing  business  under  the  firm  name  of  William  H.  Hervey  &.  Com- 
pany, for  the  conversion  of  certain  personal  property.  The  case  was 
submitted  to  the  Superior  Court,  and,  after  judgment  for  the  de- 
fendants, to  this  court,  on  appeal,  upon  an  agreed  statement  of 
facts,   in   substance  as  follows : 

On  or  about  May  25,  1877,  the  plaintiff  and  the  defendant  Her- 
vey, who  was  then  doing  business  under  the  name  of  W.  H.  Hervey 
&  Company,  entered  into  a  written  contract,  altered,  added  to  and 
re-executed  on  September  10,  1878,  which  recited  that  the  plaintiff 
had  "hired  and  received"  from  said  firm  certain  goods  enumerated, 
for  which  he  agreed  to  pay  them  certain  sums  of  money  as  "rent'" 
at  stated  times,  and  "the  balance,"  at  a  certain  rate  per  month,  "un- 
til paid ;"  that,  upon  default  in  making  such  payments,  his  right  to 
retain  said  goods  should  cease;  and  that  no  title  to  the  property 
should  vest  in  him  until  he  had  performed  all  the  conditions  of  the 
agreement,  upon  the  performance  of  which  the  title  should  so  vest. 
The  goods  and  chattels  described  in  said  contract  were  delivered  to 
the  plaintiff;  and  from  the  time  of  such  delivery  he  continued  to 
use  the  same  until  they  were  taken  from  him,  as  hereinafter  stated. 
The  plaintiff  made  sundry  payments  on  account  of  said  contract, 
amounting  in  the  whole  to  $128,  for  each  of  which  a  receipt  was 
given,  acknowledging  payment  of  the  amount  stated  therein  "on  ac- 
count of  goods  leased." 

6  Field,  C.  J.,  wrote  a  dissenting  opinion,  in  wtiicli  Allen  and  Morton,  JJ., 
concurred. 


560  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Cll.  G 

After  demands  by  Hervey  for  further  payment,  and  neglect  by  the 
plaintiff  to  pay,  Hervey  brought  an  action  on  said  contract  against 
the  plaintiff',  by  writ  dated  January  13,  1880,  and  made  returnable 
to  the  following  April  term  of  the  Superior  Court  for  the  county  of 
Suffolk.  In  that  action  the  Boston  and  Maine  Railroad  was  sum- 
moned as  trustee.  The  defendant  Bailey  did  not  enter  an  appear- 
ance, and  was  defaulted  at  the  return  term  of  the  writ.  At  the  fol- 
lowing October  term  of  said  court,  namely,  on  November  17,  1880, 
Hervey  recovered  judgment  therein  against  the  defendant,  in  the 
sum  of  $100.71,  debt  or  damage,  and  $23.44  costs  of  suit,  and  execu- 
tion issued  on  November  27,  1880 ;  on  which  was  received  from  the 
trustee  by  the  attorneys  of  Hervey  the  sum  of  $5.07,  of  the  fund  at- 
tached in  said  suit,  the  receipt  of  which  they  acknowledged  on  the 
back  of  said  execution,  in  part  satisfaction  thereof.  The  declaration 
in  that  action  alleged  the  making  of  the  contract,  and  its  breach, 
and  that  the  defendant  owed  the  plaintiff  S95.76,  for  "rent  and  in- 
terest," under  the  contract.  Said  judgment  and  execution  remain 
wholly  unsatisfied,  except  as  to  said  $5.07. 

On  October  13,  1880,  the  defendants  in  this  action,  by  their  serv- 
ants, acting  or  claiming  to  act  by  virtue  of  the  contract,  and  under 
the  license  and  power  contained  in  the  contract  in  case  of  the  plain- 
tiff's default  as  to  payments  to  be  made  by  him  as  provided  in  the 
contract,  entered  the  plaintiff's  house  and  premises,  and  took  all  of 
the  articles  enumerated  in  the  contract  which  they  could  find,  and 
being  the  same  mentioned  in  the  plaintiff's  declaration,  and  carried 
them  away,  against  the  will  and  without  the  consent  of  the  plaintiff", 
and  converted  the  same  to  their  own  use. 

After  the  contract  was  made,  the  defendant  Pray  became  copart- 
ner of  the  defendant  Hervey,  and  so  was  interested  in  the  contract 
and  in  its  performance,  and  was  such  copartner  when  the  goods  were 
taken. 

H,  upon  these  facts,  the  plaintiff  was  entitled  to  maintain  his  ac- 
tion, judgment  was  to  be  entered  for  him  in  the  svmi  of  $100  and 
costs;    otherwise,   judgment    for  the   defendants. 

C.  Allen,  J.  By  the  terms  of  the  written  agreement,  the  plaintiff 
was  bound  at  all  events  to  pay  to  the  defendants  the  full  amount 
at  which  the  goods  were  valued,  and  upon  such  payment  the  title 
was  to  vest  in  him.  This  payment,  therefore,  constitutes  the  agreed 
price  of  the  goods,  and  it  is  a  misnomer  to  call  it  rent.  The  de- 
fendants would  have  no  right  to  exact  payment  in  full  of  the  money, 
and  also  to  reclaim  the  goods.  When  the  plaintiff'  discontinued  his 
payments  on  account,  what  was  the  legal  position  of  the  defendants? 
If  it  be  assumed  that  they  might,  at  their  option,  either  reclaim  the 
goods  as  their  own  property,  without  any  obligation  to  account  for 
their  proceeds  or  value  to  the  plaintiff',  or  that  they  might  collect  the 
price  in  full,  it  is  plain  that  they  were  not  entitled  to  do  both.  They 
could  not  treat  the  transaction  as  a  valid  sale  and  an  invalid  one  at 


Sec.  2)  IN  "conditional  sales"  561 

the  same  time.  If  they  reclaimed  their  property,  it  must  be  on  the 
ground  that  they  elected  to  treat  the  transaction  as  no  sale.  If  they 
brought  an  action  for  the  price,  they  would  thereby  affirm  it  as  a 
sale. 

Two  inconsistent  courses  being  open  to  them,  they  must  elect 
which  they  would  pursue ;  and,  electing  one,  they  are  debarred  from 
the  other.  Reclaiming  the  goods  would  show  an  election  to  forego 
the  right  to  recover  the  price.  But,  instead  of  reclaiming  the  goods 
in  the  first  instance,  they  brought  an  action  against  Bailey  for  the 
price,  made  an  attachment  of  his  property  by  trustee  process,  en- 
tered their  action  in  court,  and  he  was  defaulted.  They  were  there- 
upon entitled  to  judgment  against  him.  Under  this  state  of  things, 
the  action  was  continued  to  a  later  term  of  court,  and  after  the  lapse 
of  several  months,  and  after  the  commencement  of  the  second  sub- 
sequent term  of  court,  the  defendants,  without  discontinuing  their 
action,  or  giving  any  notice  to  Bailey  of  an  intention  to  abandon  that 
remedy,  took  possession  of  the  goods ;  and,  after  this  had  been  done, 
they  proceeded  in  their  action  to  judgment,  and  took  out  execution,;  : 
upon  which  they  collected  a  small  sum  from  the  trustee.  They  had  1 
thus  made  a  decisive  election  to  treat  the  transaction  as  a  sale,  be-  ^ 
fore  reclaiming  the  goods ;  and,  under  such  an  election,  the  title 
passed  to  Bailey.  Butler  v.  Hildreth,  5  Mete.  49;  Arnold  v.  Rich- 
mond Iron  Works,  1  Gray,  434,  440;  Herryford  v.  Davis,  102  U.  S. 
235,  246,  26  L.  Ed.   160. 

For  these  reasons,  a  majority  of  the  court  is  of  opinion  that  there 
must  be  judgment  for  the  plaintiff. 


HAYNES  et  al.  v.  TEMPLE. 
(Supreme  Judicial  Court  of  Massachusetts,  1908.    198  Mass.  372,  84  N.  E.  467.) 

Tort  for  the  conversion  of  two  horses.  Writ  in  the  Superior  Court 
for  the  county  of  Middlesex,  dated  December  10,  1906. 

There  was  a  trial  before  Lawton,  J.  It  appeared  that  posses- 
sion of  the  horses  in  question  had  been  delivered  to  the  plaintiffs 
by  the  defendant  under  the  agreement  of  conditional  sale  described 
in  the  opinion,  that  the  plaintiffs  had  defaulted  in  the  payment  of 
the  first  two  of  the  three  notes  given  by  them  to  the  defendant,  that 
the  defendant  had  recovered  judgment  thereon,  which  had  been  sat- 
isfied, and  then,  the  plaintiffs  not  paying  the  third  note,  had  taken 
possession  of  the  horses,  which  was  the  conversion  complained   of. 

The  presiding  judge  refused  to  direct  a  verdict  for  the  defend- 
ant but  ruled  "that  the  defendant  was  liable  on  the  evidence  and 
that  the  only  thing  for  the  jury  to  do  was  to  assess  the  damages." 
Theie  was  a  verdict  accordingly  for  the  plaintiffs,  and,  the  defend- 
WooDW.  Sales — 36 


5G2  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  6 

ant  excepting,  the  presiding  judge  by  agreement  of  the  parties  re- 
ported the  case  for  consideration  by  this  court. 

Hammond,  J,  The  price  to  be  paid  for  the  horses  was  $400,  of 
which  $200  was  to  be  paid  in  one  month,  $100  in  two  months,  and 
$100  in  three  months  from  August  22,  1904;  and  three  notes  for 
these  respective  sums  were  given.  To  each  note  was  attached  a 
statement  that  the  horses  were  "to  be  and  remain  the  entire  and  ab- 
solute property  of  *  *  *  [the  defendant]  *  *  *  until  said 
note  is  fully  paid,     *     *     *     with  interest." 

It  is  argued  by  the  plaintiffs  that  upon  the  payment  of  either  of 
these  notes  the  title  to  the  horses  was  to  pass  to  the  plaintiffs.  But 
this  position  is  untenable.  The  delivery  of  the  horses  by  the  seller 
and  the  giving  of  the  notes  by  the  buyer  were  all  one  transaction ; 
and  it  is  too  plain  for  argument  that  the  intention  of  the  parties, 
as  shown  by  the  papers,  was  that  the  title  was  not  to  pass  until  all 
of  the  notes  were  paid,  and  such  was  the  legal  effect  of  the  transac- 
tion. Before  the  third  note  became  due  the  defendant  brought  suit 
on  the  two  which  were  overdue,  and,  having  recovered  judgment,  col- 
lected the  amounts  due  thereon  by  a  levy  upon  real  estate  of  the 
plaintiffs. 

The  question  on  this  branch  of  the  case  is  whether  his  action  in 
doing  this  is  inconsistent  with  his  right  to  insist  that  the  title  to  the 
horses  still  remains  in  him.  Plainly  it  is  not  inconsistent.  This  is 
not  a  case  where  the  seller  having,  by  reason  of  fraud  or  otherwise, 
a  right  either  to  take  back  the  goods  or  sue  for  the  entire  price 
which  is  due  and  payable  onl^upon  the  theory  that  the  title  has  passed 
to  the  buyer,  elects  to  consider  the  transaction  a  complete  sale  and 
sues  for  the  price.  In  such  a  case,  the  suit  for  the  entire  price  be- 
ing inconsistent  with  the  theory  that  the  sale  is  not  absolute,  the 
seller  is  estopped  to  set  up  the  claim  that  the  goods  remain  his  prop- 
erty. He  cannot  have  both  the  price  and  the  goods,  and  having  made 
his  election  he  must  stand  by  it.  Butler  v.  Hildreth,  5  Mete.  49. 
Whitney  v.  Abbott,  191  Mass.  59,  77  N.  E.  524.  See,  also,  the  opin- 
ion delivered  by  Wells,  J.,  in  Connihan  v.  Thompson,  111  Mass.  270. 

But  this  principle  is  not  applicable  to  the  facts  shown  in  the  case 
at  bar.  Under  the  contract  the  defendant  at  the  end  of  the  first 
month  was  to  receive  $200,  and  at  the  end  of  the  second  month  $100 
additional,  making  $300  in  all.  And  these  sums  he  was  entitled  to 
receive  whether  the  title  to  the  goods  passed  to  the  plaintiffs  or  not. 
Even  if  the  plaintiffs  had  voluntarily  paid  these  two  notes  at  matu- 
rity, still  the  title  to  the  horses  would  not  thereby  have  become  vested 
in  them  but  would  have  remained  in  the  defendant  until  the  payment 
of  the  third  note.  His  conduct  therefore  in  enforcing  by  an  action 
at  law  the  payment  of  the  two  notes  was  not  inconsistent  with  the 
position  that  the  title  to  the  horses  was  not  yet  in  the  plaintiff's.  It 
was  his  right  under  the  terms  of  the  contract  to  have  the  $300  and 
still  to  keep  his  title  until  the  last  note  was  paid.     His  act  in  brin<^- 


Sec.  2)  IN  "conditional  sales"  5G3 

ing  the  suit  was  not  an  election  between  two  inconsistent  remedies, 
but  was  an  act  perfectly  consistent  with  his  claim  to  retain  his  title, 
and  all   in   strict  compliance   with  the  contract.     He   still  holds   thei 
third  note  unpaid,  and  hence  by  the  very  terms  of  the  contract  he  i 
still   is  the  owner  of  the  horses ;    and,  the   note  being  overdue,  he  \ 
has  the  right  of  possession.     The  judge  erred  in  refusing  to  rule  as 
requested  by  the  defendant,  and   also  in  directing  the  jury  that  the 
defendant  was  liable.     Coggill  v.  Hartford  &  New  Haven  R.  Co.,  3 
Gray,  545,  and  cases  therein  cited. 
Verdict  set  aside. 


THOMASON  et  al.  v.   LEWIS. 
(Supreme  Court  of  Alabama,  1894.     103  Ala.  426,  15  South.  830.) 

CoLUMAN,  J.''  The  action  is  in  trover,  and  was  brought  by  E.  M. 
Lewis  for  the  use  of  Matthews  &  Whiteside.  The  defendants  in- 
terposed a  demurrer  to  the  complaint,  and,  the  demurrer  having 
been  overruled,  pleaded  substantially  the  following  facts,  by  special 
pleas  in  defense  of  the  action :  E.  M.  Lewis  sold  conditionally  to 
Ellis  &  Strong  the  personal  property  the  subject  of  the  present  liti- 
gation. Ellis  &  Strong  mortgaged  the  same,  and  upon  its  fore- 
closure the  appellants  became  the  purchaser.  Ellis  &  Strong  exe- 
cuted their  several  promissory  notes  to  E.  M.  Lewis  for  the  pur- 
chase money,  the  vendor  retaining  the  legal  title  in  himself  until  the 
payment  of  the  purchase  money.  E.  M.  Lewis,  the  vendor,  trans- 
ferred the  unpaid  notes  to  Matthews  &  Whiteside,  he  agreeing  to 
retain  the  title  to  the  property  for  their  benefit  and  protection.  Mat- 
thews &  Whiteside  sued  the  notes  to  judgment,  but  the  judgment  has 
not  been  paid.  Thomason  et  al.  refused  to  surrender  the  property, 
and  the  present  action  was  instituted  by  Lewis  for  the  use  of  Mat- 
thews &  Whiteside.  Upon  demurrer  the  pleas  were  held  insufficient. 
The  case  is  brought  up  under  the  special  act  establishing  the  An- 
niston  city  court. 

The  proposition  of  law  asserted  by  the  appellants  is  that  the  trans- 
fer of  the  notes  to  Matthews  &  Whiteside,  and  their  suit  upon  thei 
notes,  converted  the  conditional  sale  into  an  absolute  sale  of  the 
property  to  Ellis  &  Strong;  that  Lewis  had  the  election,  upon  a 
failure  to  pay  the  notes  at  maturity,  to  retake  possession  of  the  prop- 
erty, or  to  pursue  the  collection  of  the  debt,  but  could  not  pursue 
both  remedies,  and,  having  elected  one,  he  thereby  waived  or  lost 
the  right  to  pursue  the  other.  We  do  not  understand  this  to  be  the 
law  in  regard  to  conditional  sales  of  the  character  of  the  one  under 
consideration.  No  doubt,  if  the  plaintiffs  recover  in  the  present  ac- 
tion, the  title  to  the  property  will  vest  in  the  purchaser,  and  the  debt 
contracted   for  the   purchase  money   will   be   thereby    extinguished ; 

"  The  statement  of  facts  is  omitted. 


564  REMEDIES    OF    THE    SELLER  ON    THE    CONTRACT  (Ch.  G 

and  it  is  equally  true  that,   if  the  purchase  money  for  the  property 
had  been  paid,  the  vendor's  title  would  have  passed  to  the  purchas- 
ers, and  this  whether   voluntarily  paid,   or   forced  by   legal   process. 
It  is  also  the  law,  as  applicable  to  the  present  case,  and  the  re- 
spective rights  of  the  parties,  that  if  the  plaintiffs,  by  attachment 
I  or  execution  on  their  judgment,  had  levied  upon  the  property  in  ques- 
tion as  the  property  of  the  defendant  debtor,  or  by  any  other  un- 
equivocal act  had  recognized  the  property  as  belonging  to  the  debtor, 
such  conduct  would  amount  to  an  election  to  abandon  or  w^aive  their 
claim  as  the  legal  owners,  and  to  proceed  against  it  as  the  property 
of  the  vendee.     The  law  will  not  permit  a  vendor  who  retains  the 
legal  title  to  property  to  have  it  sold  as  the  property  of  the  debtor, 
and  get  the  benefit  of  such  sale,  and  then  claim  it  as  his  own.     Such 
/claims  are  inconsistent  and  unjust.     These  are  the  principles  declared 
/  by  this  court,  and  they  have  gone  no  further.     Lehman,  Durr  &  Co. 
(  V.  Van  Winkle,  92  Ala.  443,  8  South.  870;    Engine  Co.  v.  Hall,  89 
Ala.  628,  7   South.   187;    Dowdell  v.  Lumber   Co.,  84  Ala.   316,  4 
South.  31;    Iron  Works  v.  Smith,  98  Ala.  644,  13  South.  525. 

It  does  not  appear  from  the  complaint,  neither  is  any  fact  averred 

in  the  pleas  which  tends  to  show  a  waiver  on  the  part  of  the  vendor 

or  his  transferees  of  the  legal  title  reserved  at  the  time  of  the  sale. 

The  mortgage  executed  by  Ellis  &  Strong  conveyed  no  greater  inter- 

j  est  than  they  owned,  and  the  purchaser  under  the  mortgage  bought 

1  the  property  subject  to  plaintiff's  legal  title.     Weinstein  v.  Freyer, 

93  Ala.  257,  9  South.  285,  12  L.  R.  A.  700. 

There  is  no  error  in  the  record.     Affirmed. 


MINNEAPOLIS  HARVESTER  WORKS  v.  HALLY. 

(Supreme  Court  of  Minnesota.  ISSl.     27  Minn.  495,  8  N.  W.  597.) 

Berry,  J.^  This  action  is  brought  upon  the  following  instrument: 
"$240.  Belle  Plaine,  ]\Iinn.,  October  5,  1878. 

"On  or  before  the  first  day  of  September,  1879,  for  value  received 
in  two  ]\I.  L.  reapers,  I  promise  to  pay,  to  the  order  of  the  Minneapolis 
Harvester  Works,  $240,  at  the  office  of  Minneapolis  Harvester  Works, 
in  Minneapolis,  Minnesota,  with  interest  at  the  rate  of  12  per  cent,  per 
annum  from  date  until  paid;  agreed,  that  if  paid  at  maturity,  (or 
within  30  days  thereafter,)  then  the  interest  shall  be  nothing.  And  I 
further  agree,  in  consideration  of  the  credit  herein  given,  that  if  this 
note  is  not  paid  when  due,  and  suit  is  brought  thereon,  I  will  pay  five 
dollars  additional  on  the  amount  then  due  for  attorney's  fees,  and  the 
same  may  be  included  in  the  judgment.  And  I  further  agree  to  pay 
all  other  reasonable  expenses  incurred  in  collecting  this  note. 

'"The  express  condition  of  the  sale  and  purchase  of  the  machine  for 

8  The  statement  of  facts  is  omitted. 


Sec.  2)  IN  "conditional  sales"  565 

which  this  note  is  given  is  such  that  the  title,  ownership,  or  right  of 
possession  does  not  pass  from  the  said  Minneapolis  Harvester  Works 
until  this  note  and  interest  is  paid  in  full.  And  the  said  Minneapolis 
Harvester  Works,  or  their  authorized  agents,  are  hereby  fully  author- 
ized and  empowered  to  proceed  to  collect  the  same  at  any  time  they 
mav  reasonably  deem  themselves  insecure,  even  before  the  maturity 
thereof,  and  may  take  possession  of  said  machine,  sell  the  same,  and 
apply  the  proceeds  towards  the  payment  of  this  note,  after  paying  all 
costs  and  necessary  expenses ;  also  this  note  to  become  due  upon  the 
removal  of  its  maker  from  the  county  wherein  he  now  resides.  This 
note  may  be  paid  in  good  farmers'  notes,  taken  and  indorsed  according 
to  contract.  M.  Hally. 

'T.  O.,  Belle  Plaine,  County  of  Scott,  State  of  Minn. 

"Witness :   P.  B.  Nettleton." 

The  expressed  consideration  of  the  instrument  is  "value  received  in 
two  M.  L.  reapers."  It  is  expressly  conditioned  in  the  same  "that 
the  title,  ownership,  or  right  of  possession"  of  the  machines  "does  not 
pass  from  the  said  Alinneapolis  Harvester  Works  until  this  note  and 
interest  is  paid  in  full."  It  appears  from  undisputed  evidence  on  both 
sides  that  the  machines  have  been  taken  from  the  possession  of  the 
defendant  by  the  plaintiff  and  sold.  This  fact  we  understand  to  be 
also  substantially  alleged  in  the  complaint.  The  result  is  that  there 
is  a  total  failure  of  the  consideration  expressed  in  the  instrument.  The 
case  is  one  of  a  conditional  sale ;  that  is  to  say,  of  a  transaction  which 
was  to  take  effect  as  a  sale,  so  as  to  pass  the  title  of  the  reapers  and 
the  right  of  possession  upon  payment  therefor,  and  not  otherwise.  The ; 
defendant  not  only  never  acquired  any  "title,  ownership,  or  right  of 
possession  of  the  machines,"  but  he  has  by  the  act  of  the  plaintiff  been 
deprived  of  the  power  of  acquiring  any  by  paying  the  price  specified 
in  the  instrument. 

The  case  is  similar  to  Third  Nat.  Bank  v.  Armstrong,  25  Minn.  530, 
where  it  is  said  that  "the  promise  of  payment  and  the  implied  obliga- 
tion to  transfer  the  title  were  mutual,  and  as  each  was  the  sole  con- 
sideration for  the  other,  and  both  were  to  be  performed  at  the  same 
time,  they  were  concurrent  conditions  of  the  same  agreement,  in  the 
nature  of  mutual  conditions  precedent,  so  that  inability  or  refusal 
to  perform  the  one  would  excuse  performance  as  to  the  other."  What- 
ever remedy,  therefore,  the  plaintiffs  may  have  in  the  premises,  this 
action,  which  is  brought  upon  the  instrument  mentioned  to  recover 
the  price  thereon  agreed  to  be  paid  by  the  defendant  for  the  machines, 
cannot  be  maintained. 

The  verdict  was,  therefore,  right,  and  the  order  denying  a  new  trial 
is  accordingly  affirmed.® 

s  In  Anltman  &  Co.  v.  Olson,  43  Minn.  409,  45  N.  W.  852  (1890),  Mitchell, 
J.,  sajd:  "The  instmnients  declared  on  are  not.  in  legal  import,  distinguish- 
able from  the  one  considered  in  Minneapolis  Harvester  Works  v.  Ilally,  27 
Minn.  495,  8  N.  W.  597  (ISSl),  in  which  it  was  held  that,  the  property  which 


566  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  6 


DEDERICK  V.  WOLFE. 

(Supreme  Court  of  Mississippi,  1S91.     68  Miss.  500,  9  Soutti.  350,  24  Am.  St. 

Rep.  283.) 

Appeal  from  circuit  court,  Hinds  county;    J.  B.  Chrisman,  Judge. 

Dederick  sold  to  Wolfe  a  hay-press  for  the  sum  of  $450,  taking  in 
payment  therefor  three  notes,  of  $150  each,  payable  at  several  future 
dates,  the  title  to  the  press  being  retained  in  Dederick  till  all  notes 
were  paid.  Two  of  the  notes  were  paid,  but  default  was  made  as 
to  the  last  note,  when  under  the  contract  of  sale  the  press  was  ad- 
vertised and  sold,  and  Dederick  became  the  purchaser,  but  at  a  price 
that  still  left  a  balance  due  on  the  last  note,  on  which  he  brings  this 
suit  against  Wolfe,  the  maker,  for  such  balance.  Judgment  was  ren- 
dered in  favor  of  Wolfe,  from  which  Dederick  appealed. 

Campbell,  J.  By  the  writing  sued  on  the  makers  obligated  them- 
selves to  pay  the  sum  stipulated,  absolutely  and  at  all  events,  and  were 
to  have  the  possession  and  use  of  the  article  named  until  full  payment 
of  the  price,  or  until  deprived  of  it  by  the  act  of  Dederick  for  his  own 
security,  the  title  remaining  in  him  until  full  payment  of  the  agreed 
price ;  and  any  payment  made  before  resumption  of  possession  should 
be  considered  as  payment  for  use,  but  nothing  "shall  constitute  a  de- 
fense or  offset,  or  delay  prompt  payment  of  this  note  in  full  at  ma- 
turity." The  manifest  purpose  of  the  parties  was  to  secure  the  press 
to  the  buyer,  and  the  stipulated  price  to  the  seller,  and  hence  the  trans- 
fer for  use  of  the  press,  and  the  retention  of  title  in  the  seller  until 
paid  for.  The  transaction  was  plainly  a  sale,  with  reservation  of  title 
as  security  for  the  price,  and  resorting  to  the  press  as  means  of  se- 

was  the  expressed  consideratlou  for  the  instrument  having  been  taken  from 
the  possession  of  the  defendant  by  the  plaintiff  and  sold,  there  was  a  total 
failure  of  consideration,  and  therefore  an  action  on  the  instrument  for  the 
price  of  the  property  could  not  be  maintained.  This  proceeded  upon  the  theo- 
ry that  the  contract  was  a  mere  conditional  sale,  or  ratlier  an  executory  con- 
tract for  a  sale  on  condition,  and  that,  the  plaintiff  having  elected  to  take 
back  the  property  and  treat  his  title  as  unconditional,  the  defendant  could 
not  be  required  to  pay  for  it  It  seems  to  have  been  considered  tliat  the  case 
was  analogous  to.  if  not  controlled  by,  that  of  Third  Nat.  Bank  v.  Armstrong, 
25  Minn.  530  (1S79).  A  comparison  of  the  instniments  in  the  two  cases,  how- 
ever, Avill  show  tliat  there  was  room  for  a  distinction,  and  for  argument  that, 
while  one  constituted  a  conditional  sale,  the  other  was  a  mortgage.  But,  even 
if  there  be  doubt  as  to  the  correctness  of  the  decision  in  Minneapolis  Har- 
vester Works  v.  Hally,  we  are  not  now  inclined  to  overrule  it.  It  has  become, 
in  a  sense,  a  rule  of  property,  and  is  suppox'ted  by  autliority  elsewhere." 

Compare  Brooks  v.  Beirnstein,  1  K.  B.  98  (1909),  where  it  was  held  that, 
under  a  contract  of  hiring  witli  an  option  of  purchase  the  owner,  by  retaking 
possession  upon  the  hirer's  default,  had  not  abandoned  the  right  to  sue  for 
arrears  of  rent.  'Tf,"  said  Bigham,  J.,  "the  agreement  is  notliing  but  an 
agreement  for  hiring  plus  an  option  to  purchase,  how  has  the  accrued  right 
of  action  for  the  rent  been  got  rid  of?  If  it  could  be  said  that  by  taking  away 
the  goods  the  owners  had  deprived  the  hirer  of  all  consideration  for  the  rent, 
then  I  could  understand  that  the  accrued  cause  of  action  would  be  gone.  But 
in  truth  the  hirer  has  enjoyed  the  use  of  the  furniture  which  was  the  con- 
sideration for  the  rent,  and  I  can  see  no  reason  why  he  should  not  be  liable 
to  pay  the  arrears  claimed." 


Sec.  2)  IN  "conditional  sales"  567 

curing  payment  of  the  note  was  in  pursuance  of  the  contract,  and  did 
not  preclude  a  recovery  on  the  note,  which,  by  its  terms  and  the  super- 
added stipulations,  was  to  be  paid  at  all  events,  and  without  any  de- 
fense. 

The  case  of  Bailey  v.  Hervey,  135  Mass.  172,  relied  on  by  counsel 
for  the  appellees,  rests  on  the  assumption  that  the  seller  was  not  en- 
titled to  the  goods  sold  and  full  pay  for  them ;  and,  as  he  had  seized 
the  things  sold  and  converted  them  to  his  own  use,  he  had  made  an 
election  between  inconsistent  things,  and  was  bound  by  this  election. 
In  the  case  before  us  the  seller  merely  resorted  to  the  thing  sold  to 
make  it  available  as  a  security  for  the  note  due  and  unpaid.  He  did 
not  claim  the  right  to  the  press,  and  the  money  too,  but  to  make  what 
he  could  by  a  sale  of  the  press  at  public  outcry  after  due  notice,  and 
hold  the  makers  of  the  contract  to  pay  the  balance.  Dederick  did 
not,  by  his  course,  elect  to  abandon  his  right  to  recover  on  the  promise 
to  pay,  nor  did  he  do  anything  inconsistent  with  a  claim  for  the  per- 
formance of  that  promise.  The  title  was  retained  by  the  seller  for  the 
very  purpose  of  being  made  available  to  the  payment  of  the  money 
promised,  and  it  would  be  a  strange  result  if  the  exercise  of  his  un- 
doubted right  by  the  seller,  as  stipulated  for  by  the  buyer,  should  pre- 
clude a  recovery  on  the  promise,  which  by  its  terms  was  to  admit  of 
no  defense. 

It  is  true  it  was  stipulated  that  any  payment  made  should  be  con- 
sidered as  "payment  for  use,"  but  it  was  also  stipulated  that  no  "cause 
shall  constitute  a  defense"  of  the  promise  to  pay  the  money ;  and  the 
proposition  that  Dederick,  by  taking  possession  of  the  press  to  make 
it  available  as  security,  surrendered  or  abandoned  or  lost  his  right  to 
go  for  the  money  still  due,  is  not  maintainable.  It  rests  on  the  view 
that  the  contract  was  really  a  mere  hiring  for  use,  and  that  the  seller 
could  end  it  by  taking  possession  of  the  press  at  any  time,  and  treat  any 
payment  he  had  received  as  hire  or  rent ;  and  this  view  would  be  main- 
tainable, if  regard  be  had  to  a  single  stipulation  of  the  contract;  but, 
"in  determining  the  real  character  of  a  contract,  courts  will  always  look 
to  its  purpose,  rather  than  to  the  name  given  to  it  by  the  parties." 
Hervey  v.  Locomotive  Works,  93  U.  S.  664,  23  L.  Ed.  1003 ;  and  see 
Heryford  v.  Davis,  102  U.  S.  235,  26  Iv.  Ed.  160,  in  which  latter  case 
the  court  dealt  with  a  contract  substantially  like  the  one  before  us,  and 
took  the  same  view  of  its  effect  as  we  do  of  this. 

The  cases  supporting  our  view  are  numerous.  Many  are  referred 
to  in  3  Amer.  &  Eng.  Enc.  Law,  426.  Our  own  are  decisive  in  its 
favor,  Duke  v.  Shackleford,  56  Miss.  552;  Burnley  v.  Tufts,  66 
Miss.  48,  5  South.  627,  14  Am.  St.  Rep.  540.  It  would  be  a  most 
unreasonable  interpretation  of  the  contract  to  hold  that  Dederick's  tak- 
ing possession  of  the  press  was  an  abandonment  of  his  claim  to  be 
paid  what  had  been  promised,  and  not  paid.  There  is  no  express 
provision  to  that  effect,  and  to  give  such  effect  to  Dederick's  act  is 
to  cause  a  forfeiture  of  his  right  to  be  paid  in  full,  at  all  events,  as 


5G8  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  6 

promised  by  the  buyer;  while  the  other  view  does  justice  to  both  par- 
ties, according  to  their  contract,  by  allowing  the  seller  what  he  was 
promised,  and  the  buyer  what  was  purchased,  and  treating  the  press, 
as  it  was  intended  to  be,  as  a  security  for  the  payment  of  the  stipulated 
price. 

Reversed  and  remanded  for  a  new  trial. 


MILLER  et  al.  v.  STEEN  et  a!. 
(Supreme  Court  of  California,  1SG6.     30  Cal.  402,  89  Am.  Dec.  124.) 

Appeal  from  the  District  Court,  Fourth  Judicial  District,  City  and 
County  of  San  Francisco. 

The  defendants  entered  into  the  following  contract  with  the  plain- 
tiffs: 

"This  indenture,  made  the  eighteenth  day  of  June,  in  the  year  of 
our  Lord  eighteen  hundred  and  sixty-three,  between  Edward  T.  Steen, 
of  the  City  of  San  Francisco,  State  of  California,  party  of  the  first 
part,  and  J.  F.  Miller,  W.  C.  Coley  and  George  H.  Harrison,  of  the 
City  of  San  Francisco,  State  of  California,  party  hereunto  of  the  sec- 
ond part,  Witnesseth :  That  the  said  party  of  the  first  part  does  here- 
by lease,  demise  and  let  unto  the  said  party  of  the  second  part  the 
following  described  property,  goods,  and  chattels,  being  the  property  of 
Edward  T.  Steen,  of  San  Francisco,  State  of  California,  now  situate, 
lying,  and  being  in  the  shop  occupied  by  said  Steen,  at  No.  35  Fre- 
mont street,  in  the  City  of  San-  Francisco,  in  the  County  of  San  Fran- 
cisco; that  is  to  say,  one  steam  engine,  8  inches  bore  by  16  inches 
stroke,  with  link  motion,  fly  wheel,  shaft,  etc.,  complete;  one  steam 
boiler  three  feet  diameter  by  eighteen  8-12  feet  long,  with  two  twelve- 
inch  flues,  chimney,  grate  bars,  fire  front,  cocks,  valves,  Giffard's  in- 
jector and  all  the  appurtenances  belonging  therewith;  one  hoisting 
drum,  gears  and  shaft  complete ;  two  shrieves  for  rope  to  run  over  in 
hoisting  from  shaft ;  ten  of  the  largest  pieces  of  said  machinery  being 
stamped  "E.  T.  Steen.''  Said  machinery  shall  not  be  removed  more 
than  twelve  miles  from  the  City  Hall  in  San  Francisco,  without  the 
written  consent  of  the  first  party  or  his  assigns,  and  shall  not  be  made 
a  part  of  the  realty  of  any  party  or  person  whatever. 

"To  have  and  to  hold  the  premises  above  described  unto  the  said 
party  of  the  second  part,  their  executors  and  administrators,  for  the 
term  of  four  months  from  the  27th  day  of  June,  1863,  to  the  27th  day 
of  October,  1863,  yielding  and  paying  therefor  the  rent  in  advance  of 
one  thousand  ($1,000)  dollars  for  the  first  month,  two  hundred  ($200) 
dollars  for  the  second  month,  two  hundred  and  fifty  ($250)  dollars 
for  the  third  month,  two  hundred  and  sixty-five  ($265)  dollars  for  the 
fourth  month,  and  three  hundred  and  thirty-five  ($335)  dollars  for 
the  fifth  month,  all  payable  in  L'nited  States  gold  coin. 


Sec.  2)  IN  "conditional  sales"  569 

"And  the  said  party  of  the  second  part  does  for  their  executors  and 
administrators,  covenant,  promise  and  agree  to  and  with  the  said  party 
of  the  first  part,  his  executors,  administrators  and  assigns,  in  manner 
and  form  following:  That  is  to  say,  that  they  will  well  and  truly  pay 
the  said  rent  in  the  manner  and  at  the  time  above  provided,  and  will 
surrender  and  deliver  the  said  goods  and  chattels  to  the  lessor,  or  his 
attorney,  peaceably  and  quietly,  at  the  end  of  the  term,  in  as  good  or- 
der and  condition  (reasonable  use  and  wearing  thereof  excepted)  as 
the  same  are  now  or  may  be  put  into;  and  to  pay  the  rent  as  above 
stated  during  the  term  specified,  and  not  make  or  sufi'er  any  waste 
thereof,  nor  lease,  nor  underlet,  nor  permit  any  other  person  or  per- 
sons to  occupy  or  use  the  same,  or  make  or  suffer  to  be  made  any  al- 
teration therein,  but  with  the  approbation  of  the  lessor  or  his  assigns 
thereto  in  writing  having  been  first  obtained,  and  that  the  lessor  or  his 
assigns,  may  enter  the  house  or  premises  where  the  same  at  any  time 
are,  to  view  the  same,  and  if  the  lessee  shall  fail  to  pay  the  rent  as 
aforesaid,  or  make  or  suffer  any  injury  or  waste  thereof,  or  fail  to 
deliver  the  same  to  the  lessee  at  the  end  of  the  term,  the  lessor,  or 
his  agent,  attorney  or  assigns  may  enter  any  place  where  said  property 
is  and  take  possession  of  the  same  and  remove  it  using  all  such  force 
as  is  necessary  for  the  purpose  without  being  liable  to  any  action 
therefor.  And  should  default  be  made  in  the  payment  of  any  portion 
of  said  rent  when  due  and  should  the  same  remain  unpaid  for  three 
days  thereafter,  the  said  lessor,  his  agent,  attorney  or  assigns  may 
enter  into  any  place  or  store  where  said  goods  and  chattels  are  and 
with  such  force  as  aforesaid,  take  possession  thereof,  and  at  option  ter- 
minate this  lease,  which  is  hereby  made  assignable  by  the  first  party. 

"It  is  stipulated  and  agreed  that  if  the  above  described  rents  are 
fully  paid  as  specified,  in  United  States  gold  coin,  all  the  machinery, 
boiler,  etc.,  therein  described,  or  in  any  way  belonging,  or  connected 
therewith,  shall  be  and  become  the  property  of  the  second  party  with- 
out further  consideration  or  payment  to  the  first  party,  or  his  assigns. 

"In  witness  whereof,  the  parties  to  these  presents  have  hereunto  in- 
terchangeably set  their  hands  and  seals  the  day  and  year  first  above 
written." 

The  commencement  of  the  lease  was  subsequently  changed  to  the 
3d  of  July,  1863,  thus  making  it  expire  November  3,  1863.  The  plain- 
tiffs took  the  engine  to  San  Mateo  county,  and  used  it  in  mining. 
About  the  1st  of  October,  1863,  the  defendants  went  to  the  mine  and 
took  away  the  engine,  and  carried  it  to  San  Francisco.  The  plaintiffs 
sought  in  this  action  to  recover  judgment  for  a  return  of  the  property, 
or  if  return  could  not  be  had,  for  twelve  hundred  dollars,  the  amount 
of  purchase  money  they  had  paid,  and  for  damages.  The  defendants 
recovered  judgment,  and  the  plaintiffs  appealed. 

The  other  facts  are  stated  in  the  opinion  of  the  Court. 

Sawye;r,  J.  The  contract  in  question  was  substantially  a  contract 
of  sale.     Such  must  be  the  legal  construction   upon  the  face  of  the 


O70  REMEDIES    OF    THE    SELLER   OX    THE    CONTRACT  (Cll.  6 

instrument  evidencing  the  agreement.  The  parties  call  it  a  lease,  but 
such  is  not  the  legal  effect.  There  were  certain  stipulations,  intended, 
doubtless,  as  security  for  the  payment  of  the  purchase  money,  among 
them,  for  a  right  to  retake  possession  in  case  of  default  in  any  of  the 
payments,  and  an  option  in  the  vendor  to  terminate  the  contract.  One 
thousand  dollars  were  paid  on  delivery  of  the  property  (a  steam  en- 
gine, etc.),  and  the  first  monthly  instalment  of  two  hundred  dollars 
was  paid  when  due ;  but  there  was  a  default  in  the  payment  of  the 
second  and  third  monthly  instalments,  which  fell  due  on  the  3d  of 
September  and  3d  of  October,  respectively.  More  than  three  days 
having  elapsed  after  the  October  payment  fell  due,  the  vendor,  upon 
the  ninth  of  that  month,  in  pursuance  of  the  stipulations  of  the  con- 
tract, took  possession  of,  and  removed  the  property.  On  the  3d  of 
November,  the  last  instalment  of  three  hundred  thirty-five  dollars  fell 
due,  and,  on  that  day  plaintiffs  tendered  the  full  amount  due,  including 
the  two  preceding  payments,  and  demanded  the  property. 

We  think  the  District  Court  erred  in  holding  time  to  be  of  the  es- 
sence of  the  contract,  and  the  judgment  based  upon  that  idea  is,  there- 
fore, erroneous.  There  is  nothing  in  the  agreement  to  show  that  the 
parties  contemplated,  that,  upon  default  in  any  one  of  the  payments, 
the  vendors  should  have  the  property  and  the  money  already  paid  by 
the  vendees.  There  must  be  something  in  the  contract  clearly  indicat- 
ing such  an  intention  to  justify  the  supposition,  that  time  is  of  the 
essence  of  the  contract,  and  that,  in  default  of  payment  of  one  instal- 
ment, all  prior  payments  are  to  be  forfeited.  The  rule  in  this  class 
of  agreements  is  indicated  in  Gibbs  v.  Champion,  3  Ohio,  336 ;  Decamp 
V.  Feay,  5  Serg.  &  R.  (Pa.)  323,  9  Am.  Dec.  372 ;  Gillet  v.  Maynard,  5 
Johns.  (N.  Y.)  87,  4  Am.  Dec.  329 ;  Ravmond  v.  Bearnard,  12  Johns. 
(N.  Y.)  275,  7  Am.  Dec.  317. 

Admitting  that  the  vendor  was  authorized  to  retake  the  property 
upon  default  and  hold  it  for  his  security,  still — unless  the  contract  was 
rescinded — upon  the  full  payment  of  the  price  it  would  become  the 
property  of  the  vendees.  There  is  also,  it  is  true,  a  stipulation  that 
the  vendor  might  "at  option  terminate  the  lease."  This,  if  it  means 
anything  more  than  to  terminate  the  possession  for  the  time  being,  is 
something  in  addition  to  retaking  possession  of  the  property,  and  may, 
perhaps,  be  construed  into  a  right  to  rescind  the  contract.  If  so,  then 
,/the  vendor  might  take  the  property  and  have  it  sold  in  a  proper  pro- 
/ceeding  to  pay  the  balance  due  him,  or  he  might  take  possession,  and 
at  the  same  time  rescind  the  contract.  But  this  involves  no  forfeiture 
of  the  amount  paid,  for  to  rescind  the  contract  it  would  be  necessary 
to  return  the  twelve  hundred  dollars  already  received.  The  party  re- 
scinding must  put  the  other  party  in  statu  quo.  To  rescind  a  contract 
is  to  annul  it,  and  claim  nothing  under  it.  In  this  case  the  vendor  does 
not  appear  to  have  rescinded,  but  to  have  claimed  both  the  property, 
and  the  money  already  paid  in  pursuance  of  it.  This  he  cannot  do. 
If  the  contract  has  been  rescinded,  the  nlaintiffs  are  entitled  to  recover 


Sec.  2)  IN  "conditional  sales"  571 

the  money  paid.     If  the  contract  was  not  rescinded,  the  vendees  be 
came  entitled  to  the  possession  upon  payment  of  the  full  amount  dueJj 

We  have  assumed  that  a  tender  was  made,  because  the  evidence, 
shows  that  fact,  although  it  is  not  one  of  the  facts  found  by  the  Court. 
Upon  the  view  taken  by  the  Court,  a  finding  upon  that  point  was  not 
regarded  as  material.  There  was  an  exception  for  want  of  a  finding 
on  this  point,  although  not  strictly  in  proper  form.  A  party  requiring 
a  finding  upon  a  particular  point  should  specify  the  point  without 
dictating  the  terms  of  the  finding.  In  this  case,  for  instance,  the  ap- 
pellants should  have  requested  the  Court  to  find,  whether  a  tender  of 
the  amount  due  had  been  made,  and  when,  etc.  Hidden  v.  Jordan,  28 
Cal.  304,  305. 

The  judgment  must  be  reversed  and  a  new  trial  had,  and  it  is  so 
ordered. 


DUKE  et  al.  v.  SHACKLEFORD. 
(Supreme  Court  of  Mississippi,  1S79.     56  Miss.  552.) 

On  December  7,  1876,  W  C.  Shackleford  sold  to  Mary  C.  Della- 
hite  an  engine,  boiler,  saw,  and  gearing,  for  $725,  of  which  $500 
was  paid  cash,  and  for  the  balance  the  following  note  given : 

"$225.  On  or  before  the  1st  day  of  January,  1878,  I  promise  to 
pay  W.  C.  Shackleford,  or  bearer,  two  hundred  and  twenty-five  dol- 
lars, bearing  10  per  cent  interest  after  maturity  ;  being  balance  due 
on  engine,  boiler,  cut-ofl^  saw,  and  gearing  sold  me  this  day  by  the 
said  W.  C.  Shackleford ;  title  to  said  machinery  being  retained  by 
the  said  Shackleford  until  the  amount  is  paid  in  full. 

"It  is  expressly  understood  that  said  machinery  is  to  be  moved 
and  put  up  near  Garner's  Station,  on  the  M.  &  T.  R.  R. 

"Mary  C.  Dellahite. 

"Coffeeville,  Miss.,  Deer.  7,  1876." 

The  machinery  was  put  up  at  Garner's  Station.  The  note  was 
not  paid  at  maturity ;  and  Shackleford,  without  tendering  the  $500, 
brought  replevin  for  the  property.  The  land  on  which  the  saw- 
mill stood  was  sold  to  the  Dukes,  before  the  suit  was  brought,  who 
purchased  with  notice  of  Shackleford's  rights,  and  so  the  suit  was 
against  them;  and  they  bring  up  the  case  from  a  judgment  for  the 
recovery  of  the  machinery. 

Chalmers,  J.^"  By  the  terms  of  the  written  contract,  the  title  of 
the  property  remained  in  the  vendor  until  payment  in  full  of  the 
note  given  for  the  deferred  payment.  The  efifect  of  the  contract, 
therefore,  was  to  leave  the  right  of  property  in  the  seller,  and  to 
give  the  right  of  possession,  until  default  made  in  payment,  to  the 
purchaser.    Coupled  with  this  right  of  possession  was  also  the  right 

i"^  Part  of  the  opinion  is  omitted. 


572  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  G 

in  the  purchaser  to  obtain  title  by  payment  of  the  price.  But  the 
period  of  payment  having  arrived,  and  default  having  been  made, 
his  right  of  possession  terminated,  and  the  vendor,  who  had  all  the 
while  remained  owner,  became  entitled  to  reclaim  the  custody  of 
his  property.  In  order  to  assert  this  right,  it  was  only  necessary 
for  him  to  make  demand  for  the  restoration  of  the  property  or  pay- 
ment of  the  price;  and  this  he  did.  It  was  not  necessary  that  he 
should  pay  back,  or  tender  the  money  received  as  the  cash  payment. 
This  is  only  necessary  in  cases  of  disaffirmance  and  rescission  of  a 
sale  on  condition  subsequent. 

But  this  was  a  sale  on  condition  precedent;  that  is,  there  was 
to  be  no  sale,  properly  so  called,  no  change  of  title,  until  the  full 
price  should  be  paid;  and  the  law  annexes  to  such  a  sale  a  right 
in  the  seller  to  recover  possession  of  his  property  upon  default 
made,  even  against  subsequent  bona  fide  purchasers  for  value  with- 
out notice.  In  reclaiming  his  property,  therefore,  the  seller  is  not 
rescinding  the  contract,  but  is  enforcing  it ;  and  hence  there  is  no 
obligation  to  tender  back  anything.  He  is  simply  asserting  his 
legal  rights,  in  strict  accordance  with  the  express  stipulations  of 
the  contract.  What  rights,  if  any,  the  vendee  in  such  a  contract 
might  have  in  a  court  of  chancery  is  not  before  us.  Ketchum  & 
Cummings  v.  Brennan,  53  Miss.  597;  Story  on  Sales  (3d  Ed.) 
§  313,  and  note  2;  Benj.  on  Sales  (Perkin's  Ed.)  §  320,  and  note; 
Baker  v.  Hall,  15  Iowa,  277;  Dunbar  v.  Rawles,  28  Ind.  225,  92 
Am.  Dec.  311;  Sumner  v.  AIcFarlan,  15  Kan.  600;  Zuchtmann  v. 
Roberts,  109  Mass.  53,  12  Am.  Rep.  663 ;  Sage  v.  Sleutz,  23  Ohio 
St.  1;  Little  v.  Paige.  44  Mo.  412;  Duncan  v.  Stone,  45  Vt.  118; 
Davis  v.  Emery,  if  X.  H.  230;  Bauendahl  v.  Horr,  7  Blatchf.  548, 
Fed.  Cas.  No.  1,113;  West  v.  Bolton,  4  Vt.  558. 

The  cases  speciall}^  cited  are  all  cases  where  partial  payments  had 
been  made.     *     *     *     Affirmed. 


HAYS  V.  JORDAN  et  al. 

(Supreme  Court  of  Georgia,  1890.     S.5  Ga.  741,  11  S.  E.  S33,  9  L.  R.  A.  373.) 

Simmons,  J.^^  Jordan  &  Co.  sued  Airs.  Sudie  Hays  in  bail  trover 
for  an  "Opera  piano,"  alleged  to  be  of  the  value  of  $350,  and  also, 
in  the  same  action,  sued  her  upon  an  alleged  indebtedness  for  $35 
attorney's  fees.  The  piano  was  seized  by  the  sheriff,  and,  Mrs. 
Hays  having  failed  to  give  the  bond  required  by  law  to  retain  the 
same,  the  plaintiffs  gave  bond,  and  took  possession  of  the  piano. 
Mrs.  Hays  filed  three  pleas :  *  *  *  (3)  The  third  was  an  equi- 
table plea,  in  which  she  alleged  that  she  gave  to  the  plaintiffs  her 
notes  for  the  $350,  bearing  date  August  4,  1888,  one  being  for  $100,. 

1  i  Part  of  the  opinion  Is  omitted. 


Sec.  2)  IN  "conditional  sales"  573 

due  October  1,  1888,  one  for  $150,  due  December  1,  1888,  and  one 
for  $100,  due  February  1,  1889,  and  that  she  paid  the  first  note  when 
it  fell  due;  but,  upon  ascertaining  that  the  piano  did  not  come  up 
tc  the  warranty,  she  ofifered  to  return  it  to  the  plaintiffs  if  they 
would  return  the  money  she  had  paid  thereon;  and  that  they  re- 
fused to  do  this.  She  prayed  that,  as  they  had  elected  to  take  a 
verdict  for  the  return  of  the  piano  itself  instead  of  a  verdict  for 
damages,  she  might  have  a  judgment  against  them  for  the  $100 
which  she  had  paid  upon  the  piano.  Upon  the  trial,  the  jury,  under 
the  charge  of  the  court,  returned  a  verdict  in  favor  of  the  plaintiffs 
for  the  piano.  The  defendant  made  a  motion  for  a  new  trial  on 
the  several  grounds  therein  set  forth,  which  was  overruled,  and  she 
excepted.     *     *     * 

The  contract  being  then  a  conditional  sale,  and  not  a  lease,  and 
the  payments  made  thereunder  not  rent  but  purchase  money,  the 
plaintiff's  have  no  right  to  retain  them  as  rent ;  and  there  is  no  ex- 
press stipulation  that  they  shall  be  treated  as  a  forfeiture.  "For- 
feitures are  abhorred  in  equity,  and  are  never  favored  in  law,"  and 
provisions  for  forfeitures  are  regarded  with  disfavor,  and  construed 
with  strictness  when  applied  to  contracts,  and  the  forfeiture  relates 
to  a  matter  admitting  of  compensation  or  restoration.  Where  ade- 
quate compensation  can  be  made,  the  law  in  many  cases,  and  equity 
in  all  cases,  discharges  the  forfeiture  upon  such  compensation  being 
made.  The  law  inclines  to  remedy  breach  of  condition  by  dam- 
ages rather  than  by  forfeiture.  Code,  §  2295;  Story,  Eq.  Jur.  §§ 
1312,  1314,  1316,  et  seq.  "On  a  sale  reserving  title  till  the  price 
is  paid,  many  of  the  cases  hold  that  partial  payments  are  forfeited 
on  default  of  the  residue ;  but  in  courts  possessing  equity  powers 
the  modern  tendency  is  to  allow  the  seller  who  rescinds  a  contract 
for  default  after  receiving  a  part  of  the  price  to  retain  only  so  much 
as  will  compensate  him."  Newm.  Sales,  §  306;  Preston  v.  Whit- 
ney, 23  Mich.  260,  267;  Johnston  v.  Whittemore,  27  Mich.  463,  470. 

In  this  case,  under  the  practice  in  this  state,  it  was  within  the 
power  of  the  court  to  mould  the  verdict  so  as  to  do  full  justice  to 
the  parties,  and  in  the  same  manner  as  a  decree  in  equity.  Code, 
§§  3082,  3562;  Acts  1884-85,  p.  36;  Acts  1887,  p.  64.  Although  the 
plaintiffs  elected  to  take  the  piano,  and  not  to  take  a  money  verdict 
for  damages,  as  they  had  a  right  to  do  under  section  3564  of  the 
Code,  yet  we  do  not  think  that  they  were  entitled  to  recover  the 
piano  and  retain  all  the  money  received  from  the  defendant.  We 
think  that  under  our  law  the  court  should  have  instructed  the  jury 
to  so  mould  their  verdict  as  to  do  justice  to  all  parties,  and  should 
have  instructed  them  that  if  the  plaintiffs  elected  to  take  the  specific 
property,  and  a  part  of  the  purchase  money  had  been  paid,  the 
plaintiffs  were  entitled  to  recover  the  property  itself;  but  before 
they  could  recover  they  must  return  the  money  which  the  defend- 
ant had  paid  them,  after  deducting  a  proper  amount  for  the  use  of 


574  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Ch.  G 

the  piano,  if  the  use  was  of  any  value  to  the  defendant,  which 
amount  the  jury  should  arrive  at  from  the  evidence,  finding  the  bal- 
ance, with  interest,  in  favor  of  the  defendant  against  the  plaintiffs, 
the  piano  to  be  returned  to  the  plaintiffs  upon  payment  to  the  de- 
fendant of  the  amount  thus  found.  Where  the  plaintiff  obtains 
possession  of  the  piano  by  bail  process,  as  was  done  in  this  case, 
the  court  can  enter  judgment  for  the  amount  found  for  the  defend- 
ant upon  the  plaintiff's  bond. 

The  ruling  here  made  is  not  in  conflict  with  that  in  the  case  of 
Guilford  v.  McKinley,  61  Ga.  230.  In  that  case  the  plaintiffs  elected 
to  take  a  money  verdict  for  the  damages,  and  not  a  verdict  for  the 
property.  This  court  held  that  they  could  recover  the  balance  of 
the  purchase  money,  after  deducting  what  had  been  paid,  and  dam- 
ages for  breach  of  warranty.  When  the  court  said  in  the  latter 
part  of  the  opinion  in  that  case  that  "the  plaintiffs  had  the  right 
to  recover  it  unless  the  balance  of  the  price  be  paid,"  the  court 
meant  that  the  plaintiffs  had  the  right  to  recover  the  balance  of 
the  purchase  money  after  deducting  what  had  been  paid,  and  after 
deducting  damages  arising  from  defects  in  the  piano,  because  the 
court  adds:  "Which  payment  may  be  in  money,  or  by  showing  that 
the  piano  was  a  faulty  instrument,  and  that  the  plaintiff  had  got 
all  it  was  worth,  owing  to  its  defects." 

Judgment  reversed.'^ 


RAYFIELD  v.   VAN   METER.     (S.   F.   762.) 

(Supreme  Court  of  California,  1S9S.     120  Cal.  416.  52  Pac.  666.) 

Britt,  C.  On  September  4,  1890,  the  parties  to  this  action  entered 
into  a  contract  in  writing  whereby  plaintiff  covenanted  to  sell  to 
defendant  certain  household  furniture  at  the  price  of  $1,830,  of  which 
price  the  sum  of  $1,000  was  then  paid,  and  the  residue  was  to  be 
paid  on  or  before  September  4,  1891 ;  plaintiff  to  give  a  bill  of  sale 
of  the  furniture  on  receiving  such  deferred  payment.  Defendant 
received  immediate  possession  of  the  goods,  but  agreed  on  his  part 
that,  if  he  failed  to  pay  the  said  balance,  he  would  restore  such  pos- 

12  In  A.  D.  Puffer  &  Sons  Mfg.  Co.  v.  Lucas,  112  N.  C.  377,  17  S.  E.  174,  19  L. 
R.  A.  GS2  (1S93),  which  was  an  action  of  claims  and  delivery  to  recover  a  soda 
water  machine,  it  appeared  that  the  contract  provided  that  there  should  be 
paid  as  "rent"  !?330  in  installments,  that  there  was  $70  due  on  the  machine, 
and  that  the  buyer  had  sustained  .^26  damage  by  reason  of  a  breach  by  the 
seller.  The  lower  court  entered  judgment  for  the  plaintiff,  but  the  Supreme 
Court  directed  that  "the  judgment  below  should  be  modified  by  permitting  the 
defendant,  in  a  reasonable  time,  to  pay  the  sum  found  to  be  due  plaintiff,  after 
deducting  the  counterclaim  from  the  balance  remaining  unpaid  of  the  pur- 
chase money,  with  interest,  and,  if  not  then  paid,  a  sale  of  foreclosure  to  pay 
off  such  balance  and  the  costs  of  the  action,  the  residue,  if  any.  to  be  paid  to 
the  defendant." 


Sec.  2)  IN  "conditional  sales"  575 

session  to  plaintiff  on  demand.  In  due  time,  plaintiff  tendered  to  de- 
fendant a  bill  of  sale,  and  demanded  payment  of  the  said  balance 
of  $830.     He  refused  payment,  and  refused  to   restore  the  goods. 

On  November  6,  1891,  plaintiff  brought  this  action  to  recover  said 
goods,  and  obtained  possession  thereof  by  process  of  claim  and  de- 
livery. In  a  cross-complaint,  defendant  alleged  that  he  entered  into 
said  contract  under  the  influence  of  fraud,  and  also  duress,  prac- 
ticed by  plaintiff,  that  she  had  replevied  the  property,  and  that  the 
consideration  for  his  promise  to  pay  said  balance  had  failed.  He 
prayed  that  he  recover  the  sum  of  $1,000  already  paid,  less  such  com- 
pensation to  plaintiff  for  the  use  of  the  goods  as  justice  might  re- 
quire. In  August,  1893,  plaintiff  began  selling  the  property  piece 
by  piece,  and  so  disposed  of  the  whole  of  it;  this  for  the  reason, 
testified  by  her,  that  "the  storage  charges  were  very  large,  and  the 
property  was  continually  deteriorating  in  value."  The  trial  was 
had  in  August,  1895.  The  findings  negatived  defendant's  allegations 
respecting  fraud  and  duress,  and  declared  the  right  of  plaintiff  to 
possession  of  the  goods  at  the  commencement  of  the  action.  The 
facts  concerning  the  replevin  and  subsequent  sale  of  the  goods  by 
plaintiff  were  found ;  and  the  court  decided,  as  the  net  result,  that 
by  selling  the  goods  after  she  had  replevied  them  the  plaintiff  re- 
scinded her  contract  with  defendant,  and  that  he  was  entitled  to 
recover  of  her  his  payment  of  $1,000,  less  the  value  of  the  use  of 
the  goods  during  the  time  they  were  in  his  possession,  fixed  at  $420 ; 
he  being  allowed  also  interest  on  the  excess  of  said  payment  above 
such  rental. 

There  was  no  supplemental  pleading  to  raise  the  question  on  which 
the  case  was  made  to  turn,  viz.,  the  effect  of  the  sale  of  the  goods 
by  plaintiff  after  she  had  regained  possession  of  them,  but,  as  appel- 
lant makes  no  point  on  the  procedure,  we  shall  consider  it  as  one 
properly  presented  by  the  record.  The  defendant  himself  put  an 
end  to  the  contract,  if  plaintiff  chose  to  so  regard  it.  "In  cases  of 
this  sort,  where  the  question  is  whether  the  one  party  is  set  free 
by  the  action  of  the  other,  the  real  matter  for  consideration  is  whether 
the  acts  or  conduct  of  the  one  do  or  do  not  amount  to  an  intima- 
tion to  abandon,  and  altogether  to  refuse  performance  of,  the  con- 
tract." Lord  Coleridge,  C.  J.,  in  Freeth  v.  Burr,  L.  R.  9  C.  P.  213. 
Perhaps  the  language  of  the  eminent  chief  justice  was  hardly  suffi- 
ciently stringent  in  allowing  that  a  mere  intimation  of  such  inten- 
tion may  dissolve  a  contract,  but  it  is  apparent  that  in  this  case  the 
defendant's  purpose  to  refuse  performance  was  distinctly  and  un- 
equivocally evinced.  His  refusal  to  pay  the  deferred  installment  of 
purchase  money  was  continued  for  nearly  two  years  before  plaintiff", 
having  lawfully  regained  possession  of  the  goods,  made  sale  of  them, 
and  by  his  pleading  in  the  action  he  repudiated  any  further  obliga- 
tion under  the  contract,  in  which  respects,  as  the  findings  of  the 
court  show,  his  conduct  was  without  lawful  justification.     By  these 


576  REMEDIES    OF    THE    SELLER   ON    THE    CONTRACT  (Cll.  6 

acts  the  vinculum  juris  arising  from  the  contract  was  broken,  and 
there  was  nothing  which  plaintiff  needed  to  rescind. 

A  buyer  who  without  lawful  excuse  refuses  to  go  forward  with 
his  contract  is  not  entitled  to  recover  back  money  paid  on  account 
thereof.  Bradford  v.  Parkhurst,  96  Cal.  102,  30  Pac.  1106,  31  Am. 
St.  Rep.  189;  Hansbrough  v.  Peck,  5  Wall.  497,  18  L.  Ed.  520. 
Those  were  cases  of  sales  of  lands,  but  the  principle  has  at  least  as 
extensive  application  to  agreements  for  sale  of  personalty.  Tied. 
Sales,  §  210;;  2  Schouler,  Pers.  Prop.  §  298;  Herzog  v.  Purdy,  119 
Cal.  99,  51  Pac.  27,  29.  It  is  immaterial  that  plaintiff  sold  the  goods. 
In  Ketchum  v.  Evertson,  13  Johns.  (N.  Y.)  359,  7  Am.  Dec.  384. 
an  action  for  money  paid  on  a  contract  for  the  conveyance  of  land, 
it  was  justly  and  forcibly  remarked:  "To  say  that  the  subsequent 
sale  of  the  land  gives  a  right  to  the  plaintiff"  to  recover  back  the 
money  paid  on  the  contract  would,  in  eff'ect,  be  saying  that  the  de- 
fendant could  never  sell  it  without  subjecting  himself  to  an  action 
by  the  plaintiff's.  Why  should  he  not  sell?  The  plaintiff's  renounced 
the  contract,  and  peremptorily  refused  to  fulfill  it.  It  was  vain, 
therefore,  to  keep  the  land  for  them.  The  plaintiffs  cannot,  by  their 
own  wrongful  act,  impose  upon  the  defendant  the  necessity  of  re- 
taining property  which  his  exigencies  may  require  him  to  sell.  This 
would  be  most  unreasonable  and  unjust,  and  is  not  sanctioned  by 
any  principle  of  law."  These  views  are  equally  appropriate  to  a 
case  of  sale  of  chattels.  Neis  v.  O'Brien,  12  Wash.  358,  41  Pac.  59, 
50  Am.  St.  Rep.  894. 

Defendant  here  relies  somewhat  on  Miller  v.  Steen,  30  Cal.  402, 
89  Am.  Dec.  124,  where  it  was  said  that  a  seller  cannot  claim  both 
the  property,  and  the  money  paid  in  pursuance  of  a  contract  for 
sale  of  it.  But  there  the  purchasers,  so  far  from  refusing  perform- 
ance of  the  contract  or  denying  its  obligation,  had  come  in  sufficient 
season,  and  tendered  the  balance  unpaid  for  the  goods,  and  insisted 
on  observance  of  the  contract, — circumstances  which  make  all  the 
difference  in  cases  of  this  nature.  Packer  v.  Button,  35  Vt.  192-194. 
See  Railroad  Co.  v.  Mudd,  59  Cal.  588,  589. 

Section  1749,  Civ.  Code,  provides,  "If  a  buyer  of  personal  prop- 
erty does  not  pay  for  it  according  to  contract,  and  it  remains  in  the 
possession  of  the  seller  after  payment  is  due,  the  seller  may  rescind 
the  sale,  or  may  enforce  his  lien  for  the  price,  in  the  manner  pre- 
scribed by  the  title  on  liens."  Defendant  claims,  as  we  understand 
the  argument,  that,  since  plaintiff'  did  not  adopt  the  latter  alternative 
mentioned  in  section  1749,  the  law  compels  her  to  the  first;  that  is, 
to  rescission,  and  consequent  restoration  of  the  payment  she  had 
received.  The  case,  however,  is  without  the  scope  of  that  section. 
There  was  no  sale  of  the  property  to  defendant, — only  an  agreement 
for  sale,  which  was  terminated  as  we  have  seen.  By  retaking  the 
property  the  plaintiff  lost  the  right  to  compel  payment  of  the  bal- 
ance of  the  purchase  price, — Railroad   Co.   v.  Mudd,   59  Cal.   589; 


Sec.  2)  IN  "conditional  sales"  577 

Benj.  Sales  (Bennett's  6th  Ed.)  p.  284, — and  had  at  most  but  an  un- 
liquidated claim  for  damages  for  defendant's  breach.  Hence,  first- 
ly, there  was  no  sale  requiring  rescission,  and,  secondly,  there  was 
no  lien  requiring  enforcement,  within  the  meaning  of  said  section 
1749.  Gibbs  V.  Ranard,  86  Cal.  531,  25  Pac.  63;  Hewes  v.  Fruit  Co., 
106  Cal.  441,  39  Pac.  853;   Civ.  Code,  §  3311. 

It  is  contended  that  in  equity  the  defendant  should  recover  the 
sum  paid,  less  a  proper  compensation  for  the  use  had  by  him  of  the 
goods.  But  the  grounds  for  equitable  relief  against  the  contract 
pleaded  by  defendant  were  found  against  him  by  the  court,  and  he 
stands  in  the  position  of  one  who  willfully  refused  to  comply  with 
his  agreement.  It  seems  to  us  that  there  is  little  equity,  and  cer- 
tainly no  sound  policy,  in  allowing  a  buyer,  under  such  circumstanc- 
es, to  be  at  pleasure  quit  of  his  contract,  with  no  other  liability  than 
such  as  the  law  would  have  implied  had  there  been  no  contract  of 
sale  at  all.  No  case  is  made  for  the  interposition  of  equity.  Civ. 
Code,  §  3275;  Tied.  Sales,  §  219;  Parsons  v.  Smilie,  97  Cal.  647,  32 
Pac.  702;  Hicks  v.  Lovell,  64  Cal.  20,  21,  27  Pac.  942,  49  Am.  Rep. 
679;   Cf.  Thirlby  v.  Rainbow,  93  Mich.  168,  169,  53  N.  W.  159. 

The  judgment  and  order  appealed  from  should  be  reversed.^^ 

13  See  Pfeifer  v.  Norman  (N.  D.)  133  N.  W.  97,  and  elaborate  note,  38  L.  R. 
A.  (N.  S.)  891  (1911). 

WooDW.  Sales — 37 


578  REMEDIES    OF    THE    BUYER   ON    THE    CONTRACT  (Ch.  7 

CHAPTER  VII 
REMEDIES  OF  THE  BUYER  ON  THE  CONTRACT 


MONDEL  V.  STEEL, 

(Court  of  Exchequer,  1841.     S  Mees.  &  W.  858.) 

Parke,  B.^  In  this  case,  the  declaration  is  in  special  assumpsit  on 
a  contract  to  build  a  ship  for  the  plaintiff,  at  a  certain  rate  per  ton 
and  according  to  a  certain  specification :  and  the  breach  assigned  is 
for  the  building  a  vessel  with  scantlings,  fastenings,  and  planking, 
according  to  such  specification ;  by  reason  whereof  the  ship,  on  a  voy- 
age from  London  to  New  South  Wales  and  back,  was  so  much 
strained  that  it  became  necessary  to  re-fasten  and  repair  her. 

To  this  declaration  there  was  one  plea,  to  which  it  is  unnecessary 
to  allude,  as  it  was  admitted  to  be  bad  on  special  demurrer,  and  it  is 
to  be  amended ;  and  a  second  plea,  on  which  the  question,  which  we 
have  taken  time  to  consider,  arises. 

This  plea  states  in  substance,  that  the  defendant  had  sued  the 
plaintiff  for  the  balance  of  the  agreed  price  of  the  vessel,  after  pay- 
ment of  £3500.  and  also  for  a  sum  of  £134.  odd  for  extra  work,  in 
the  form  of  an  action  for  work  and  labour,  and  for  goods  sold  and 
delivered ;  that  issue  was  joined,  and,  on  the  trial  of  the  cause,  the 
plaintiff'  gave  evidence  in  his  defence  of  the  same  breach  of  contract 
alleged  in  the  declaration;  and  insisted,  that  if  the  amount  of  com- 
pensation to  which  he  was  entitled,  exceeded  or  equalled  the  balance 
of  the  price  and  the  value  of  the  extra  work,  the  now  plaintiff  was 
entitled  to  a  verdict;  if  it  was  less,  that  he  was  entitled  to  a  deduc- 
tion from  the  amount  of  both,  of  such  amount  of  compensation.  The 
plea  proceeds  to  state,  (and,  we  must  assume,  correctly,  for  the  pur- 
poses of  this  argument,  though  the  statement  has  arisen  from  mis- 
take,) that  the  learned  judge  before  whom  the  cause  was  tried,  my 
Brother  Rolfe,  so  directed  the  jury;  and  that  the  jury  found  that  the 
now  defendant  had  committed  a  breach  of  contract,  and  was  entitled 
to  some  compensation,  which  they  deducted  from  the  price  of  the 
vessel  and  value  of  the  extra  work;  and  the  now  defendant  had  judg- 
ment for  the  amount,  after  such  deduction  had  been  made,  since  the 
commencement  of  this  suit. 

The  plaintiff  demurred  to  this  plea,  assigning  several  causes  of 
special  demurrer,  which  it  is  not  necessary  to  notice,  as  we  are  all  of 
opinion  that  it  is  bad  in  substance. 

1  The  stateuient  of  facts  is  omitted. 


Ch.  7}  REMEDIES    OF    THE    BUYER   ON    THE    CONTRACT  579 

The  ground  on  which  it  was  endeavoured  to  support  the  plea,  in  a 
very  ingenious  argument,  was  this :  that  a  defendant  in  an  action  for 
the  stipulated  price  of  a  chattel,  which  the  plaintiff  had  contracted  to 
make  for  the  defendant  of  a  particular  quality,  or  of  a  specific  chattel 
sold  with  a  warranty,  and  delivered,  had  the  option  of  setting  up  a 
counter  claim  for  breach  of  the  contract  in  the  one  instance,  or  the 
warranty  in  the  other,  in  the  nature  of  a  cross  action;  and  that  if  he 
exercised  that  option,  he  was  in  the  same  situation  as  if  he  had  brought 
such  an  action ;  and  consequently,  could  not,  after  judgment  in  one 
action,  bring  another;  and  the  case  was  likened  to  a  set-off  under  the 
statutes.  This  argument  was  founded  on  no  other  authority  than  an 
expression  of  Lord  Tenterden  in  giving  the  judgment  of  the  Court  in 
the  case  of  Street  v.  Blay,  2  B.  &  Aid.  22  E.  C.  h.  R.  462,  his  lord- 
ship having  said  that  a  breach  of  warranty  might  be  given  in  evi- 
dence in  an  action  for  the  price  of  a  specific  article  sold,  in  mitiga- 
tion of  damages,  "on  the  principle,  it  should  seem,  of  avoiding  circuity 
of  action."  But  we  are  all  of  opinion  that  no  such  inference  is  to  be 
drawn  from  that  expression ;  what  was  meant  was,  that  the  sum  to 
be  recovered  for  the  price  of  the  article  might  be  reduced  by  so  much 
as  the  article  was  diminished  in  value,  by  reason  of  the  non-compli- 
ance with  the  warranty ;  and  that  this  abatement  was  allowed  in  order 
to  save  the  necessity  of  a  cross  action. 

Formerly,  it  was  the  practice,  where  an  action  was  brought  for  an 
agreed  price  of  a  specific  chattel,  sold  with  a  warranty,  or  of  work 
which  was  to  be  performed  according  to  contract,  to  allow  the  plain- 
tiff to  recover  the  stipulated  sum,  leaving  the  defendant  to  a  cross  ac- 
tion for  breach  of  the  warranty  or  contract;  in  which  action,  as  well 
the  difference  between  the  price  contracted  for  and  the  real  value  of 
the  articles  or  of  the  work  done,  as  any  consequential  damage,  might 
have  been  recovered ;  and  this  course  was  simple  and  consistent.  In 
the  one  case,  the  performance  of  the  warranty  not  being  a  condition 
precedent  to  the  payment  of  the  price,  the  defendant,  who  received 
the  chattel  warranted,  has  thereby  the  property  vested  in  him  inde- 
f easibly,  and  is  incapable  of  returning  it  back ;  he  has  all  that  he  stipu- 
lated for  as  the  condition  of  paying  the  price,  and  therefore  it  was 
held  that  he  ought  to  pay  it,  and  seek  his  remedy  on  the  plaintift"'s 
contract  of  warranty.  In  the  other  case,  the  law  appears  to  have  con- 
strued the  contract  as  not  importing  that  the  performance  of  every 
portion  of  the  work  should  be  a  condition  precedent  to  the  payment 
of  the  stipulated  price,  otherwise  the  least  deviation  would  have  de- 
prived the  plaintiff  of  the  whole  price;  and  therefore  the  defendant 
was  obliged  to  pay  it,  and  recover  for  any  breach  of  contract  on  the 
other  side. 

But  after  the  case  of  Basten  v.  Butter,  7  East,  479,  a  different  prac- 
tice, which  had  been  partially  adopted  before  in  the  case  of  King  v. 
Boston,  7  East,  481,  note,  began  to  prevail,  and  being  attended  with 


580  REMEDIES    OF    THE    BUYER   ON    THE    CONTRACT  (Ch.  7 

much  practical  convenience,  has  been  since  generally  followed ;  and 
the  defendant  is  now  permitted  to  show  that  the  chattel  by  reason  of 
the  non-compliance  with  the  warranty  in  the  one  case,  and  the  work  in 
consequence  of  the  non-performance  of  the  contract  in  the  other,  were 
diminished  in  value;  Kist  v.  Atkinson,  2  Camp.  64;  Thornton  v. 
Place,  1  M.  &  Rob.  218,  &c.  The  same  practice  has  not,  however, 
extended  to  all  cases  of  work  and  labour,  as  for  instance  that  of  an 
attorney,  Templer  v.  McLachlan,  2  T.  R.  136,  unless  no  benefit  what- 
ever has  been  derived  from  it;  nor  in  an  action  for  freight;  Shiels  v. 
Davies,  4  Camp.  119. 

It  is  not  so  easy  to  reconcile  these  deviations  from  the  ancient  prac- 
tice with  principle,  in  those  particular  cases  above-mentioned,  as  it 
is  in  those  where  an  executory  contract,  such  as  this,  is  made  for  a 
chattel,  to  be  manufactured  in  a  particular  manner,  or  goods  to  be  de- 
livered according  to  a  sample;  Germaine  v.  Burton,  3  Stark.  (14  E. 
C.  L.  R.)  32;  where  the  party  may  refuse  to  receive,  or  may  return 
in  a  reasonable  time,  if  the  article  is  not  such  as  bargained  for ;  for 
in  these  cases  the  acceptance  or  non-return  affords  evidence  of  a  new 
contract  on  a  quantum  valebat ;  whereas,  in  a  case  of  a  delivery  with 
a  warranty  of  a  specific  chattel,  there  is  no  power  of  returning,  and 
consequently  no  ground  to  imply  a  new  contract :  and  in  some  cases 
of  work  performed,  there  is  difficulty  in  finding  a  reason  for  such 
presumption. 

It  must  however  be  considered,  that  in  all  these  cases  of  goods  sold 
and  delivered  with  a  warranty,  and  work  and  labour,  as  w^ell  as  the 
case  of  goods  agreed  to  be  supplied  according  to  a  contract,  the  rule 
which  has  been  found  so  convenient  is  established ;  and  that  it  is  com- 
petent for  the  defendant,  in  all  of  those,  not  to  set  oft',  by  a  proceed- 
ing in  the  nature  of  a  cross  action,  the  amount  of  damages  which  he 
has  sustained  by  breach  of  the  contract,  but  simply  to  defend  himself 
by  showing  how  much  less  the  subject-matter  of  the  action  was  worth, 
by  reason  of  the  breach  of  contract;  and  to  the  extent  that  he  ob- 
tains, or  is  capable  of  obtaining,  an  abatement  of  price  on  that  ac- 
count, he  must  be  considered  as  having  received  satisfaction  for  the 
breach  of  contract,  and  is  precluded  from  recovering  in  another  action 
to  that  extent ;   but  no  more. 

The  opinion,  therefore,  attributed  on  this  record  to  the  learned 
Judge  is,  we  think,  incorrect,  and  not  warranted  by  law ;  and  all  the 
plaintiff"  could  by  law  be  allowed  in  diminution  of  damages,  on  the 
former  trial,  was  a  deduction  from  the  agreed  price,  according  to  the 
difference,  at  the  time  of  the  delivery,  between  the  ship  as  she  was, 
and  what  she  ought  to  have  been  according  to  the  contract:  but  all 
claim  for  damages  beyond  that,  on  account  of  the  subsequent  neces- 
sity for  more  extensive  repairs  could  not  have  been  allowed  in  the 
former  action,  and  may  now  be  recovered. 

We  have  already  observed  in  the  course  of  the  argument,  that  the 


Ch.  7)  REMEDIES    OF    THE    BUYER   ON    THE    CONTRACT  581 

defence  made  in  the  second  plea  cannot  be  supported  on  the  ground 
that  it  discloses  a  mutual  agreement  by  the  plaintiff  and  defendant  to 
leave  the  amount  of  the  cross  claim  to  the  jury  as  arbitrators,  and  that 
they  have  made  an  award.  The  plea  does  not  state  any  such  agree- 
ment, or  an  equivalent  thereto.  Our  judgment  must  therefore  be  for 
the  plaintiff. 

Judgment  for  the  plaintiff. 


BERMAN  V.  HENRY  N.  CLARK  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1907.     194  INIass.  248,  SO  N.  E.  4S0.> 

Knowlton,  C.  J.-  The  defendant  made  a  contract  in  writing  to 
furnish  and  put  in  place  specific  apparatus  for  heating  three  houses 
belonging  to  the  plaintiff.  The  contract  contained  a  guaranty  as  fol- 
lows :  "We  guarantee  this  apparatus  to  be  complete  in  every  way  and, 
when  finished,  to  be  capable  of  warming  all  rooms  in  which  radiators 
are  placed  to  70  degrees  in  zero  weather.  We  guarantee  this  appa- 
ratus against  all  imperfections  in  material  and  workmanship  for  one 
year."     This  action  is  brought  to  recover  upon  this  guaranty. 

An  earlier  action  was  brought  by  the  defendant  company  against 
the  plaintiff',  to  recover  the  price  of  this  apparatus,  and  for  extra  work 
in  connection  with  the  contract.  As  a  defense  to  this  former  action, 
the  present  plaintiff  answered,  denying  that  the  plaintiff  in  that  action 
had  fulfilled  its  contract,  and  averring  that  it  failed  to  provide  ap- 
paratus which  complied  with  the  guaranty  contained  in  the  contract, 
in  that  the  apparatus  furnished  has  been  and  was  unable  to  heat  the 
apartments  to  70  degrees  in  zero  weather,  etc.,  and  claiming  a  recoup- 
ment of  damages.  After  a  trial  upon  these  pleadings,  the  plaintiff 
in  that  action  recovered  from  the  present  plaintiff  the  full  amount 
claimed  in  its  declaration.  The  only  question  now  before  us  is 
whether  the  judgment  in  the  former  action  is  a  bar  to  the  present  one. 

We  think  it  plain  that  it  is.  The  principles  applicable  to  the  case 
were  considered  in  Gilmore  v.  Williams,  162  Mass.  351,  38  N.  E.  976, 
in  Bradley  v.  Bradley,  160  Mass.  258,  35  N.  E.  482,  and  in  Watts  v. 
Watts,  160  Mass.  464,  36  N.  E.  479,  23  L.  R.  A.  187,  39  Am.  St.  Rep. 
509.  See,  also,  Alorse  v.  Elms,  131  Mass.  151.  In  Gilmore  v.  Wil- 
liams it  was  said  of  the  plaintiff,  seeking  to  recover  on  a  breach  of 
warranty,  he  having  previously  set  up  this  breach  as  a  defense  to  an 
action  upon  the  note  given  in  consideration  of  the  warranty,  "if  he 
chose  to  plead  the  breach  of  warranty  in  answer  to  the  claim  on  the 
note,  and  if  a  judgment  was  entered  against  him  for  the  whole  amount 
due  on  the  note,  or  a  part  of  it,  on  the  issue  thus  raised,  the  judgment 
Avould  be  a  bar  to  any  further  claim  under  the  warranty.  This  would 
be  so  whether  the  judgment  was  entered  by  consent  of  parties,  or 

2  The  statement  of  facts  is  omitted. 


582  REMEDIES  OF  THE  BUYER  ON  THE  CONTRACT       (Ch.  7 

upon  a  default  after  answer,  or  upon  a  verdict  after  trial  on  the  facts. 
His  election  to  claim  his  damages  by  way  of  recoupment  in  that  suit 
would  be  conclusive  on  him." 

This  doctrine  is  conclusive  against  the  right  of  the  plaintiff  to  re- 
cover in  the  present  case.  There  is  a  well  recognized  distinction,  re- 
ferred to  in  the  cases  above  cited,  between  the  effect  of  a  judgment 
pleaded  as  an  estoppel  as  to  facts  arising  collaterally  in  another  ac- 
tion, and  its  effect  as  a  final  determination  of  the  matters  declared  on 
as  the  cause  of  action,  or  set  up  in  the  answer  as  a  ground  for  an  al- 
lowance in  defense. 

It  is  immaterial  that  there  had  been  no  zero  weather  before  the  trial 
of  the  first  action.  The  capacity  of  the  apparatus  was  put  in  issue, 
and  could  be  shown  otherwise  than  by  actual  experiment.  Evidence 
was  introduced  on  the  subject,  and  it  would  have  been  in  the  power 
of  the  court,  upon  motion,  to  continue  the  case  for  trial  until  there  was 
an  opportunity  for  an  experiment,  if  it  had  been  thought  advisable  to 
do  so. 

Judgment  on  the  verdict. 


STREET  V.   BLAY. 

(Court  of  King's  Bench,  1S31.     2  Barn.  &  Ad.  456.) 

Lord  Te;nte:rde:n,  C.  J.^  We  have  taken  time  to  consider  of  this 
case,  and  are  now  of  opinion  that  the  rule  ought  to  be  made  absolute 
for  a  new  trial,  unless  the  parties  can  agree  to  enter  a  verdict  for 
the  plaintiff  for  a  sum  less  than  the  full  amount. 

The  facts  of  the  case  were  these :  The  plaintiff,  on  the  2d  of 
February,  sold  the  horse  to  the  defendant  for  £43,  with  a  war- 
ranty of  soundness.  The  defendant  took  the  horse,  and  on  the  same 
day  sold  it  to  Bailey  for  i45.  Bailey,  on  the  following  day,  parted 
with  it  in  exchange  to  Osborne;  and  Osborne,  in  two  or  three  days 
afterwards,  sold  it  to  the  defendant  for  £30.  No  warranty  appeared 
to  have  been  given  on  any  of  the  three  last  sales.  The  horse  was,  in 
fact,  unsound  at  the  time  of  the  first  sale;  and  on  the  9th  of  Feb- 
ruary the  defendant  oft'ered  to  return  it  to  the  plaintiff,  who  refused 
to  accept  it.  The  question  for  consideration  is,  whether  the  defend- 
ant, under  these  circumstances,  had  a  right  to  return  the  horse,  and 
thereby   exonerate  himself    from   the   payment   of   the   whole   price? 

It  is  not  necessary  to  decide,  whether  in  any  case  the  purchaser 
of  a  specific  chattel,  who,  having  had  an  opportunity  of  exercising 
his  judgment  upon  it,  has  bought  it,  with  a  warranty  that  it  is  of 
any  particular  quality  or  description,  and  actually  accepted  and  re- 
ceived it  into  his  possession,  can  afterwards,  upon  discovering  that 
the   warranty   has  not   been   complied    with,   of    his    own   will   only, 


Ch.  7)  REMEDIES    OP    THE    BUYER   ON    THE    CONTRACT  583 

without  the  concurrence  of  the  other  contracting  party,  return  the 
chattel  to  the  vendor,  and  exonerate  himself  from  the  payment  of 
the  price,  on  the  ground  that  he  has  never  received  that  article  which 
he  stipulated  to  purchase.  There  is,  indeed,  authority  for  that  po- 
sition. Lord  Eldon,  in  the  case  of  Curtis  v.  Hannay,  3  Esp.  N.  P. 
C.  83,  is  reported  to  have  said,  that  "he  took  it  to  be  clear  law,  that 
if  a  person  purchases  a  horse  which  is  warranted  sound,  and  it 
afterwards  turns  out  that  the  horse  was  unsound  at  the  time  of  the 
warranty,  the  buyer  might,  if  he  pleased,  keep  the  horse  and  bring 
an  action  on  the  warranty,  in  which  he  would  have  a  right  to  recover 
the  difference  between  the  value  of  a  sound  horse  and  one  with  such 
defects  as  existed  at  the  time  of  the  warranty ;  or  he  might  return 
the  horse  and  bring  an  action  to  recover  the  full  money  paid ;  but 
in  the  latter  case,  the  seller  had  a  right  to  expect  that  the  horse  should 
be  returned  in  the  same  state  he  was  when  sold,  and  not  by  any 
means  diminished  in  value;"  and  he  proceeds  to  say,  that  if  it  were 
in  a  worse  state  than  it  would  have  been  if  returned  immediately 
after  the  discovery,  the  purchaser  would  have  no  defence  to  an  ac- 
tion for  the  price  of  the  article.  It  is  to  be  implied  that  he  would 
have  a  defence  in  case  it  were  returned  in  the  same  state,  and  in  a 
reasonable  time  after  the  discovery.  This  dictum  has  been  adopted 
in  Mr.  Starkie's  excellent  work  on  the  Law  of  Evidence,  part  4, 
p.  645 ;  and  it  is  there  said  that  a  vendee  may,  in  such  a  case,  rescind 
the  contract  altogether  by  returning  the  article,  and  refuse  to  pay 
the  price,  or  recover  it  back  if  paid. 

It  is,  however,  extremely  difficult,  indeed  impossible,  to  reconcile 
this  doctrine  with  those  cases  in  which  it  has  been  held,  that  where 
the  property  in  the  specific  chattel  has  passed  to  the  vendee,  and  the 
price  has  been  paid,  he  has  no  right,  upon  the  breach  of  the  war- 
ranty, to  return  the  article  and  revest  the  property  in  the  vendor, 
and  recover  the  price  as  money  paid  on  a  consideration  which  has 
failed,  but  must  sue  upon  the  warranty,  unless  there  has  been  a  con- 
dition in  the  contract  authorizing  the  return,  or  the  vendor  has  re- 
ceived back  the  chattel,  and  has  thereby  consented  to  rescind  the 
contract,  or  has  been  guilty  of  a  fraud,  which  destroys  the  contract 
altogether.  Weston  v.  Downes,  1  Doug.  23,  Towers  v.  Barrett,  1  T. 
R.  133,  Payne  v.  Whale,  7  East,  274,  Power  v.  Wells,  Doug.  24,  note, 
and  Emanuel  v.  Dane,  3  Campb.  299,  where  the  same  doctrine  was 
applied  to  an  exchange  with  a  warranty,  as  to  a  sale,  and  the  vendee 
held  not  to  be  entitled  to  sue  in  trover  for  the  chattel  delivered,  by 
way  of  barter,  for  another  received.  If  these  cases  are  rightly  de- 
cided, and  we  think  they  are,  and  they  certainly  have  been  always 
acted  upon,  it  is  clear  that  the  purchaser  cannot  by  his  own  act  alone, 
unless  in  the  excepted  cases  above  mentioned,  revest  the  property 
in  the  seller,  and  recover  the  price  when  paid,  on  the  ground  of  the 
total  failure  of  consideration ;  and  it  seems  to  follow  that  he  cannot,  by 
the  same  means,  protect  himself  from  the  payment  of  the  price  on 


584  REMEDIES  OF  THE  BUYER  ON  THE  CONTRACT       (Ch.  7 

the  same  ground.  On  the  other  hand,  the  cases  have  estabHshed, 
that  the  breach  of  the  warranty  may  be  given  in  evidence  in  mitiga- 
tion of  damages,  on  the  principle,  as  it  should  seem,  of  avoiding  cir- 
cuity of  action,  Cormack  v.  Gillis,  cited  7  East,  480,  King  v.  Boston, 
7  East,  481,  note;  and  there  is  no  hardship  in  such  a  defence  being 
allowed,  as  the  plaintiff  ought  to  be  prepared  to  prove  a  compliance 
with  his  warranty,  which  is  part  of  the  consideraion  for  the  specific 
price  agreed  by  the  defendant  to  be  paid. 

It  is  to  be  observed,  that  although  the  vendee  of  a  specific  chattel, 
delivered  with  a  warranty,  may  not  have  a  right  to  return  it,  the  same 
reason  does  not  apply  to  cases  of  executory  contracts,  where  an  ar- 
ticle, for  instance,  is  ordered  from  a  manufacturer,  who  contracts 
that  it  shall  be  of  a  certain  quality,  or  fit  for  a  certain  purpose,  and 
the  article  sent  as  such  is  never  completely  accepted  by  the  party 
ordering  it.  In  this  and  similar  cases  the  latter  may  return  it  as 
soon  as  he  discovers  the  defect,  provided  he  has  done  nothing  more 
in  the  mean  time  than  was  necessary  to  give  it  a  fair  trial,  Okell 
V.  Smith,  1  Stark.  N.  P.  C.  107 ;  nor  would  the  purchaser  of  a  com- 
modity, to  be  afterwards  delivered  according  to  sample,  be  bound  to 
receive  the  bulk,  which  may  not  agree  with  it;  nor  after  having  re- 
ceived what  was  tendered  and  delivered  as  being  in  accordance  with 
the  sample,  will  he  be  precluded  by  the  simple  receipt  from  returning 
the  article  within  a  reasonable  time  for  the  purpose  of  examination 
and  comparison.  The  observations  above  stated  are  intended  to  ap- 
ply to  the  purchase  of  a  certain  specific  chattel,  accepted  and  received 
by  the  vendee,  and  the  property  in  which  is  completely  and  entirely 
vested  in  him. 

But  whatever  may  be  the  right  of  the  purchaser  to  return  such  a 
warranted  article  in  an  ordinary  case,  there  is  no  authority  to  shew 
that  he  may  return  it  where  the  purchaser  has  done  more  than  was 
consistent  with  the  purpose  of  trial ;  where  he  has  exercised  the 
dominion  of  an  owner  over  it,  by  selling  and  parting  with  the  prop- 
erty to  another,  and  where  he  has  derived  a  pecuniary  benefit  from 
it.  These  circumstances  concur  in  the  present  case ;  and  even  sup- 
posing it  might  have  been  competent  for  the  defendant  to  return 
this  horse,  after  having  accepted  it,  and  taken  it  into  his  possession, 
if  he  had  never  parted  with  it  to  another,  it  appears  to  us  that  he 
cannot  do  so  after  the  re-sale  at  a  profit. 

These  are  acts  of  ownership  wholly  inconsistent  with  the  purpose 
of  trial,  and  which  are  conclusive  against  the  defendant,  that  the 
particular  chattel  was  his  own;  and  it  may  be  added,  that  the  par- 
ties cannot  be  placed  in  the  same  situation  by  the  return  of  it,  as  if 
the  contract  had  not  been  made,  for  the  defendant  has  derived  an 
intermediate  benefit  in  consequence  of  the  bargain,  which  he  would 
still  retain.  But  he  is  entitled  to  reduce  the  damages,  as  he  has  a 
right  of  action  against  the  plaintiff  for  the  breach  of  warranty.  The 
damages  to  be  recovered  in  the  present  action  have  not  been  prop- 


Ch.  7)       REMEDIES  OF  THE  BUYER  ON  THE  CONTRACT  585 

erly  ascertained  by  the  jury,  and  there  must  be  a  new  trial,  unless 
the  parties  can  agree  to  reduce  the  sum  for  which  the  verdict  is  to 
be  entered ;  and  if  they  do  agree,  the  verdict  is  to  be  entered  for 
that   sum. 

Rule  absolute  on  the  above  terms.* 


BRYANT  v.  ISBURGH. 

(Supreme  Judicial  Court  of  Massachusetts,  1859.     13  Gray,  607,  74  Am.  Dec. 

655.) 

Me;tcalf,  J.^  The  precise  question  in  this  case  is,  whether  a  pur- 
chaser of  personal  property,  sold  to  him  with  an  express  warranty, 
and  taken  into  possession  by  him,  can  rescind  the  contract  and 
return  the  property,  for  breach  of  the  warranty,  when  there  is  no 
fraud,  and  no  express  agreement  that  he  may  do  so.  It  appears 
from  the  cases  cited  for  the  plaintiff  that  in  the  English  courts,  and 
in  some  of  the  courts  in  this  country,  he  cannot;  and  that  his  only 
remedy  is  on  the  warranty.  See,  also,  2  Steph.  N.  P.  1296;  Addi- 
son on  Con.  (2d  Amer.  Ed.)  272 ;  Oliphant's  Law  of  Horses,  88 ; 
Cripps  V.  Smith,  3  Irish  Law  R.  277. 

But  we  are  of  opinion  (notwithstanding  a  dictum  of  Parsons,  C. 
J.,  in  Kimball  v.  Cunningham,  4  Mass.  505,  3  Am.  Dec.  230)  that,  by 
the  law  of  this  commonwealth,  as  understood  and  practised  upon 
for  more  than  forty  years,  there  is  no  such  difference  between  the 
effect  of  an  implied  and  an  express  warranty  as  deprives  a  purchas- 
er of  any  legal  right  of  rescission  under  the  latter,  which  he  has 
under  the  former;  and  that  he  to  whom  property  is  sold  with  ex- 
press warranty,  as  well  as  he  to  whom  it  is  sold  with  an  implied 
warranty,  may  rescind  the  contract  for  breach  of  warranty,  by  a 
seasonable  return  of  the  property,  and  thus  entitle  himself  to  a 
full  defence  to  a  suit  brought  against  him  for  the  price  of  the 
property,  or  to  an  action  against  the  seller  to  recover  back  the  price, 
if  it  have  been  paid  to  him.  In  Bradford  v.  Manly,  13  Mass.  139, 
7  Am.  Dec.  122,  where  it  was  decided  that  a  sale  by  sample  was 
tantamount  to  an  express  warranty  that  the  sample  was  a  true 
representative  of  the  kind  of  thing  sold,  (and  in  which  case  there 
was  no  fraud,)  Chief  Justice  Parker  said  "If  a  different  thing  is  de- 
livered, he"  (the  seller)  "does  not  perform  his  contract,  and  must 
pay  the  difference,  or  receive  the  thing  back  and  rescind  the  bar- 
gain, if  it  is  offered  him."  This,  it  is  true,  was  only  a  dictum,  and 
not  to  be  regarded  as  a  decisive  authority.  But  in  Perley  v.  Balch, 
23  Pick.  283,  34  Am.  Dec.  56,  which  was  an  action  on  a  promissory 

4  See,  also,  Lyon  v.  Bertram,  20  How.  149,  15  L.  Ed.  847  (1857).  Where, 
by  the  local  law,  rescission  is  allowed,  the  federal  courts  allow  it.  See  George 
Lawley  &  Son  Corp.  v.  Park,  138  Fed.  31,  70  C.  C.  A.  399  (1905). 

5  The  statement  of  facts  is  omitted. 


586  REMEDIES  OF  THE  BUYER  ON  THE  CONTRACT       (Cll.  7 

note  given  for  the  price  of  an  ox  sold  to  the  defendant,  it  was  ad- 
judged that  the  jury  were  rightly  instructed  that  if,  on  the  sale  of 
the  ox,  there  was  fraud,  or  an  express  warranty  and  a  breach  of  it, 
the  defendant  might  avoid  the  contract  by  returning  the  ox  within 
a  reasonable  time,  and  that  this  would  be  a  defence  to  the  action. 
In  Dorr  v.  Fisher,  1  Cush.  274,  it  was  said  by  Shaw,  C.  J.,  that,  "to 
avoid  circuity  of  action  a  warranty  may  be  treated  as  a  condition 
subsequent  at  the  election  of  the  vendee,  who  may,  upon  a  breach 
thereof,  rescind  the  contract  and  recover  back  the  amount  of  his 
purchase  money,  as  in  case  of  fraud.  But  if  he  does  this,  he  must 
first  return  the  property  sold,  or  do  everything  in  his  power  req- 
uisite to  a  complete  restoration  of  the  property  to  the  vendor;  and 
without  this  he  cannot  recover."  The  chief  justice  took  no  distinc- 
tion between  an  express  warranty  and  an  implied  one,  but  referred, 
in  support  of  what  he  had  said,  (with  other  cases,)  to  Perley  v. 
Balch,  cited  above. 

In.  1816,  when  the  case  of  Bradford  v.  !Manly  was  before  this 
court,  and  afterwards,  until  1831,  the  law  of  England,  on  the  point 
raised  in  the  present  case  was  supposed  to  be  as  we  now  hold  it  to 
be  here.  Lord  Eldon  had  said,  in  Curtis  v.  Hannay,  3  Esp.  R.  82,  that 
he  took  it  to  be  "clear  law ;"  and  so  it  was  laid  down  in  2  Selw. 
N.  P.  (1st  Ed.)  586,  in  1807.  and  in  Long  on  Sales,  125,  126,  in  1821, 
and  in  2  Stark.  Ev.  (1st  Ed.)  645,  in  1825.  In  1831,  in  Street  v. 
Blay,  2  B.  &  Ad.  461,  Lord  Eldon's  opinion  was  first  denied,  and 
a  contrary  opinion  expressed  by  the  Court  of  King's  Bench.  Yet 
our  court  subsequently  (in  1839)  decided  the  case  of  Perley  v. 
Balch.  The  doctrine  of  that  decision  prevents  circuity  of  action  and 
multiplicity  of  suits,  and,  at  the  same  time,  accomplishes  all  the 
ends  of  justice. 

Exceptions  sustained. 


MILLIKEN  v.  SKILLINGS. 
(Supreme  Judicial  Court  of  Maine,  1S96.     89  Me.  180,  36  Atl.  77.) 

WhitehousE,  J.®  The  plaintiff  brought  this  action  on  account  an- 
nexed to  recover  a  balance  of  $310.29  for  355  cases  of  canned  corn, 
being  710  dozen  cans,  sold  and  delivered  under  the  following  agree- 
ment, signed  by  him  September  4,  1893 : 

"I  do  this  day  agree  to  sell  to  Red  Brook  Packing  Co.  my  swee": 
corn  at  $1.00  per  doz.,  warranted  to  be  in  good  condition,  with  the 
conditions : 

"1st.  To  pay  for  cans  $21.00  per  M. 

"2d.     "     "     "     labels  $  2.40     "     " 

"3d.     "     "     "     boxes         .09  apiece. 

"To  be  taken  out  of  $1.00  per  doz." 

6  Part  of  the  opinion  is  omitted. 


Ch.  7)       REMEDIES  OP  THE  BUYER  ON  THE  CONTRACT  587 

The  defendant  filed  an  account  in  set-off,  amounting  to  $405.78, 
for  cans,  boxes,  and  labels  furnished,  and  $126.13  in  cash  paid  on 
account,  claiming  that  the  corn  received  by  him  was  not  in  good 
condition  as  warranted,  and  had  no  market  value,  and,  furthermore, 
that  the  contract  was  rescinded  by  him  on  account  of  this  breach 
of  warranty  of  the  quality  of  the  goods. 

The  jury  returned  a  verdict  in  favor  of  the  defendant  for  $405.78, 
the  exact  amount  of  the  account  in  set-off.  The  case  comes  to  the 
law  court  on  exceptions  to  the  instructions  of  the  presiding  justice 
and  a  motion  to  set  aside  the  verdict  as  against  evidence. 

It  is  undoubtedly  settled  law  in  this  state  that  a  sale  of  personal 
property,  with  a  warranty  of  quality,  and  without  fraud,  may  be 
treated  as  a  sale  upon  condition  subsequent,  at  the  election  of  the 
purchaser ;  and,  in  the  event  of  a  breach  of  the  warranty,  the  prop- 
erty may  be  returned,  and  the  sale  rescinded,  since  a  breach  of  the 
warranty  may  be  equally  injurious  to  the  buyer  whether  the  vendor 
acted  in  good  faith  or  bad  faith.  Marston  v.  Knight,  29  Me.  341 ; 
Cutler  V.  Gilbreth,  53  Me.  176;   Farrow  v.  Cochran,  72  Me.  309. 

But  the  right  of  rescission  is  limited  to  cases  where  the  seller 
can  be  put  substantially  in  the  position  which  he  occupied  before 
the  contract.  "Where  a  contract  is  to  be  rescinded  at  all,  it  must 
be  rescinded  in  toto,"  said  Lord  EHenborough,  "and  the  parties  put 
in  statu  quo."  Hunt  v.  Silk,  5  East,  449.  See.  also,  Kimball  v. 
Cunningham,  4  Mass.  502,  3  Am.  Dec.  230;  Conner  v.  Henderson, 
15  Mass.  319,  8  Am.  Dec.  103;  Snow  v.  Alley,  144  Mass.  546,  11 
N.  E.  764,  59  Am.  Rep.  119;  Morse  v.  Brackett,  98  Mass.  205; 
Marston  v.  Knight,  29  Me.  341.  And  this  rule,  which  makes  it 
the  duty  of  a  buyer,  who  would  rescind  a  contract  for  breach  of 
warranty  of  quality,  to  restore  the  seller  substantially  to  his  former 
position,  necessarily  requires  him  to  return  or  tender  back  to  the 
seller  whatever  of  value  to  himself  or  the  other  he  has  received 
under  the  contract.  In  Dorr  v.  Fisher,  1  Cush.  (Mass.)  271,  Shaw, 
C.  J.,  says  that  for  breach  of  warranty  the  vendee  may  "rescind  the 
contract,  and  recover  back  the  amount  of  his  purchase  money,  as 
in  case  of  fraud.  But,  if  he  does  this,  he  must  first  return  the  prop- 
erty sold,  or  do  ever3'thing  in  his  power  requisite  to  a  complete 
restoration  of  the  property  to  the  vendor,  and,  without  this,  he  can- 
not recover." 

The  law,  however,  requires  neither  impossibilities  nor  idle  and 
useless  ceremonies.  So,  if  the  buyer's  offer  to  restore  the  goods  is 
met  by  an  absolute  refusal  of  the  other  party  to  receive  them  if 
tendered,  he  will  be  relieved  of  the  duty  of  actually  returning  or 
tendering  them  to  the  vendor  at  the  place  where  the  title  passed. 

In  Noyes  v.  Patrick,  58  N.  H.  618,  the  idea  is  thus  expressed: 
^'The  party  seeking  to  rescind  must  ordinarily  restore,  or  offer  to 
restore,  whatever  he  has  received  under  the  contract;  and,  in  case 
of  the  refusal  of  the  wrongdoer  to  receive  it,  an  oft'er  to  restore 


58S  REMEDIES  OF  THE  BUYER  ON  THE  CONTRACT       (Ch.  7 

properly  made,  is  equivalent  to  actual  restoration."  In  the  discus- 
sion of  this  question  the  word  "offer"  is  frequently  used  by  courts 
and  text  writers  as  synonymous  with  "tender,"  and  it  may  be  prop- 
erly so  used  with  reference  to  articles  capable  of  manual  delivery 
and  actually  produced,  as,  in  Luey  v.  Bundy,  9  N.  H.  298,  32  Am. 
Dec.  359,  it  was  said  to  be  unnecessary  to  produce  the  notes  and 
money  in  court.  "He  had  oft'ered  them  to  the  defendant,  who  re- 
fused to  receive  them."  But  with  respect  to  heavy  articles  of  mer- 
chandise, situated  at  a  distance  from  the  place  to  which  they  must 
be  transported  if  restored  to  the  vendor,  the  phrase  "offer  to  return" 
is  more  commonly  and  more  aptly  employed  to  express  a  willing- 
ness or  to  make  a  proposal  to  rescind  the  contract  and  return  the 
goods.  It  is  not  sufficient,  however,  for  a  buyer,  who  has  taken  de- 
livery of  the  goods  at  the  vendor's  place  of  business,  merely  to  ex- 
press a  willingness  or  make  a  proposal  to  return  the  goods,  or 
simply  to  give  notice  to  the  seller  that  he  holds  the  goods  subject 
to  his  order,  or  to  request  him  to  come  and  take  them  back.  If  he 
would  rescind  the  contract,  he  must  return  or  tender  back  the  goods 
to  the  seller  at  the  place  of  dtdivery,  unless,  upon  making  the  offer 
so  to  do,  he  is  relieved  of  the  obligation,  as  stated,  by  a  refusal  to 
receive  them  if  tendered.  Norton  v.  Young  3  Me.  (3  Greenl.)  30; 
Ayers  v.  Hewett,  19  Me.  281;  Cushman  v.  Marshall,  21  Me.  122; 
Stinson  v.  Walker,  21  Me.  211;  Tvler  v.  City  of  Augusta.  88  Me. 
504.  34  Atl.  406. 

The  principle  controlling  the  restoration  of  the  status  quo  in  this 
class  of  cases  is  essentially  the  same  as  the  ordinary  rule  in  regard 
to  the  requisites  of  a  valid  tender,  with  respect  to  which  all  the  au- 
thorities agree  that  there  must  be  an  actual  production  of  the  mon- 
ev,  or  its  production  must  be  expresslv  or  impliedlv  waived.  Chit. 
Cont.   1191;    Sargent  v.  Graham,  5  N.  H.  440,  22  Am.  Dec.  469. 

Upon  this  evidence  the  presiding  justice  instructed  the  jury  as 
follows  :  "The  plaintiff'  claims  that  the  corn  belonged,  and  does  now, 
to  the  defendant.  The.  defendant  claims  that  it  belongs  to  the  plain- 
tiff, that  he  has  tendered  it  back,  and  offered  to  return  it,  and  that  it 
belongs  to  him,  the  plaintiff.  *  *  *  Now,  the  plaintiff  claims  that, 
under  all  the  circumstances,  there  never  has  been  a  rescission  of  the 
contract.  *  *  *  Now,  in  the  first  place,  was  there  an  offer  here 
to  return  these  goods?  Did  the  defendant,  at  the  time  he  states, 
say  to  the  plaintiff  that  the  goods  were  not  in  accordance  with  the 
contract,  in  quality?  and  did  he  tender  them  back  to  the  plaintiff 
by  stating  that  they  were  there  subject  to  his  order,  or  words  to 
that  eft'ect?  There  is  no  set  phrase  necessary  to  constitute  the 
rescission  of  a  contract,  except  that  the  buyer  must  offer  to  return 
them  to  the  seller  on  the  ground  that  they  were  not  in  accordance 
with  the  original  arrangement  in  quality  or  otherwise.  *  *  *  j 
believe  I  have  now  covered  these  two  grounds.     «     *     *     jf  there 


Ch.  7)  REMEDIES    OF    THE    BUYER   ON    THE    CONTRACT  589 

was  an  offer  to  rescind  the  contract  on  the  ground  of  a  defect  in  the 
quality,  if  done  within  a  reasonable  time,  it  makes  no  difference 
whether  the  seller  accepted  the  offer  or  not, — whether  he  takes  the 
goods  into  his  possession  or  not." 

In  the  first  place,  there  was  not  sufficient  evidence  in  the  case 
to  warrant  these  instructions.  It  has  been  seen  that  the  defendant 
did  not  claim  that  he  ever  returned  or  tendered  the  goods  to  the 
plaintiff  at  his  place  of  business,  or  that  he  was  relieved  from  so 
doing  by  any  refusal  of  the  plaintiff  to  accept  them  if  tendered 
there.  When  the  defendant  says  he  told  the  plaintiff  the  corn  would. 
be  of  no  use  to  him,  and  he  wanted  him  to  take  it  back,  the  plaintiff 
only  made  a  counter  proposition  that  he  would  take  some  sample 
cans  home  and  see  what  he  could  do  with  them.  This  was  clearly 
insufficient  to  constitute  a  rescission.  As  stated  by  Cutting,  J.,  in 
Hopkins  v.  Fowler,  39  Me.  568,  "the  instructions  must  have  been 
called  forth  upon  an  assumption  of  some  testimony  to  warrant  them ; 
and  if  the  assumption  was  erroneous,  the  instructions  became  a 
superstructure  without  a  foundation,  and  might  have  had  some  tend- 
ency to  mislead  the  jury." 

In  the  case  at  bar  there  is  reasonable  ground  to  apprehend  that 
the  jury  was  misled  by  the  instructions  given.  The  frequent  ref- 
erence in  the  charge  to  an  "oft'er  to  return"  the  corn,  as  sufficient  to 
constitute  a  rescission,  necessarily  gave  the  jury  the  erroneous  im- 
pression that,  if  the  defendant  made  the  offer  which  he  claimed  to 
have  made,  without  any  refusal  on  the  part  of  the  plaintiff,  he  had 
done  all  the  law  required  of  him  in  order  to  rescind  the  contract. 
As  the  corn  and  packing  cases  were  of  some  value  to  the  plaintiff, 
the  jury  must  have  found  that  the  contract  was  rescinded.  This 
is  apparent  from  the  amount  of  the  verdict. 

The  general  principles  of  law  involved  in  the  rescission  of  con- 
tracts had  been  accurately  stated  in  the  earlier  part  of  the  charge ; 
but  it  is  the  opinion  of  the  court  that,  in  giving  the  jury  the  more 
specific  instructions  above  set  forth,  the  learned  justice  inadvertent- 
ly omitted  to  point  out  the  distinctions  and  qualifications  required 
by  the  facts  and  circumstances  disclosed  in  the  evidence. 

Exceptions  sustained.^ 

7  The  buyer  must  exercise  his  right  to  rescind  without  unreasonable  delay, 
and  must  place  the  seller  substantially  in  statu  quo.  Consequently,  if  the 
goods,  or  part  of  them,  are  injured,  destroyed  or  disposed  of,  the  right  to 
rescind  is  lost.  Libby  v.  Haley,  91  Me.  331,  39  Atl.  1004  (1S98) ;  Continental 
Jewelry  Co.  v.  Pugh  Bros.,  IGS  Ala.  295,  53  South.  324,  Ann.  Cas.  1912A,  657 
(1910).  However,  if  the  injury  results  from  the  defect  warranted  against, 
the  right  to  rescind  is  not  affected.  Smith  v.  Hale,  158  Mass.  178,  33  N.  E. 
493,  35  Am.  St.  Rep.  485  (1893). 


590  REMEDIES    OF    THE    BUYER   ON    THE    CONTRACT  (Cll.  7 

EYERS  et  al.  v.  HADDEM  et  al. 
(Circuit  Court  of  United  States,  W.  D.  Wisconsin,  1S95.     "'O  Fed.  64S.) 

BuNN,  District  Judge.  This  is  an  action  brought  by  the  plaintiffs, 
who  are  citizens  of  North  Dakota,  against  the  defendants,  who  are  cit- 
izens of  Wisconsin,  upon  a  warranty  in  the  sale  of  a  stallion.  The  de- 
fendants are  importers  of  blooded  horses  at  Janesville,  Wis.,  and  on 
]\Iarch  11,  1893,  sold  to  the  defendants  an  imported  stallion,  by  a  bill 
of  sale  containing  the  following  printed  warranty:  "We  hereby  guar- 
anty the  above-named  horse  to  be  a  reasonable  foal  getter,  with  proper 
care  and  handling.  In  case  he  should  prove  not  to  be  so,  we  agree 
to  replace  him  with  another  horse  of  same  breed  and  price,  upon  de- 
livery to  us  of  the  above-named  horse  at  our  stables  without  cost  to 
us,  if  as  sound  and  in  as  good  condition  as  when  purchased  of  us." 

The  case  was  tried  before  a  jury  at  La  Crosse  in  September,  1895. 
and  a  verdict  rendered  in  favor  of  the  plaintiffs  for  $1,350.  The 
price  paid  for  the  stallion  was  $2,700.  The  plaintiffs'  evidence  was 
directed  to  show  that  the  horse,  instead  of  being  a  reasonable  foal 
getter,  was  what  is  known  among  horsemen  as  a  "ridgling,"  and 
nearly  worthless  as  a  foal  getter.  The  plaintiffs'  evidence  went  to 
show  that  during  the  season  of  1893,  when  the  plaintiffs  stood  him 
for  service,  he  got  only  about  10  per  cent,  of  mares  served  with  foal, 
and  that  his  value  was  not  more  than  that  of  a  common  workhorse, 
or  about  $150.  After  the  evidence  was  in  the  defendants  asked  the 
court  to  direct  a  verdict  in  their  favor,  on  the  ground  that  the  evi- 
dence showed  that  plaintiffs'  did  not  return  the  horse  according  to 
the  conditions  of  the  warranty,  and  give  the  defendants  the  oppor- 
tunity to  replace  him  with  another  horse.  The  court  overruled  the 
motion  pro  forma,  reserving  the  question  for  further  argument  upon 
a  motion  for  a  new  trial,  in  case  there  should  be  a  verdict  in  favor 
of  the  plaintiffs. 

That  motion  has  now  been  heard,  and  fully  argued  and  considered, 
and  the  court  is  of  opinion  that  it  must  be  overruled.  The  rule  is  laid 
down  in  28  Am.  &  Eng.  Enc.  Law,  827,  as  follows :  "In  a  sale  of 
certain  classes  of  articles,  the  contract  of  sale  frequently  specifies  the 
buyer's  remedy  in  case  the  warranty  is  not  complied  with.  The  buyer 
is  not  concluded  by  such  a  provision,  however,  but  may  waive  the 
special  remedy,  and  proceed  as  if  the  contract  had  been  silent  in  that 
particular.  The  special  remedy  usually  allowed  in  such  contracts  is  the 
privilege  of  returning  the  article,  if  it  proves  not  to  be  as  warranted, 
and  to  receive  back  the  price  paid." 

And  it  seems  to  be  fully  supported  by  the  authorities.  One  of  the 
leading  and  best-considered  cases  on  the  subject  is  that  of  Manufac- 
turing Co.  V.  Gardner,  10  Cush.  (Mass.)  88.  In  that  case  the  court, 
by  Aletcalf,  J.,  says:     "When  a  seller,  in  addition  to  a  warranty  of 


Ch.  7)       REMEDIES  OP  THE  BUYER  ON  THE  CONTRACT  59l 

property,  makes  a  promise  to  take  it  back  if  it  does  not  conform  to 
the  warranty,  we  cannot  hold  that  such  superadded  provision  rescinds 
and  vacates  the  contract  of  warranty.  We  are  of  opinion  that  in  such 
case  the  buyer  has,  if  not  a  double  remedy,  at  least  a  choice  of  rem- 
edies, and  may  either  return  the  property  within  a  reasonable  time,  or 
keep  it  and  maintain  an  action  for  breach  of  the  warranty." 

The  same  ruling  was  made  by  the  supreme  court  of  Connecticut 
in  an  opinion  by  Park,  C.  J.,  in  Shupe  v.  Collender,  56  Conn.  489,  15 
Atl.  405,  1  L.  R.  A.  339.  In  Perrine  v.  Serrell,  30  N.  J.  Law,  454,  the 
action  was  on  a  warranty  in  the  sale  of  a  horse,  with  a  provision  that 
if  the  horse  did  not  suit  he  might  be  returned,  and  the  seller  would 
take  Bim  back  and  send  one  that  would  suit.  The  court  held  that  this 
latter  provision  was  independent  of  the  warranty,  and  that  the  pur- 
chaser was  not  obliged  to  return  the  horse,  but  could  maintain  his 
action  upon  the  warranty. 

In  Love  V.  Ross,  recently  decided  (October,  1893)  by  the  supreme 
court  of  Iowa,  reported  in  89  Iowa,  400,  56  N.  W.  529,  the  contract 
was  for  the  sale  of  a  stallion,  with  a  warranty  that  he  was  a  reasonably 
sure  foal  getter  under  favorable  circumstances,  and  in  default  of  which 
the  purchasers  could  return  the  stallion  to  the  sellers  in  as  good  con- 
dition as  he  was  then  in,  and  the  sellers  would  exchange  him  for  an- 
other, giving  or  receiving  the  actual  difference  of  value  in  the  two 
animals.  In  my  judgment  the  case  is  not  distinguishable  from  the 
one  at  bar.  It  was  held  that  the  purchasers  had  the  right  to  retain 
the  horse  and  to  recover  damages  for  the  breach  of  the  warranty,  or 
to  return  him  and  receive  another  horse  in  exchange  upon  the  terms 
stated.  Hefner  v.  Haynes,  by  the  same  court,  decided  in  1894,  reported 
in  89  Iowa,  616,  57  N.  W.  421,  holds  to  the  same  rule  under  a  similar 
warranty  in  the  sale  of  a  stallion. 

The  supreme  court  of  Minnesota,  in  Mandel  v.  Buttles,  21  Minn.  391, 
and  Fitzpatrick  v.  D.  M.  Osborne  &  Co.,  50  Minn.  261,  52  N.  W.  861, 
has  held  the  same  doctrine,  following  Manufacturing  Co.  v.  Gardner, 
supra. 

Kemp  V.  Freeman,  42  111.  App.  500,  was  an  action  upon  the  follow- 
ing warranty  on  the  sale  of  a  stallion :  "We  warrant  the  animal  to  be 
sound  and  healthy,  and  in  every  respect  an  average  breeder ;  and,  in 
case  he  fails  to  be  an  average  breeder,  we  agree  to  take  him  back  and 
replace  him  with  another  horse  of  equal  value  and  merits."  And  the 
court  says :  "The  transaction  between  the  parties  was  an  unconditional, 
absolute,  and  fully-completed  sale,  with  a  warranty  of  the  seller  super- 
added. Had  there  been  no  condition  in  the  contract  by  which  the  ap- 
pellants bound  themselves  to  take  the  stallion  back  in  case  of  a  breach 
of  the  warranty,  the  appellee  could  only  have  kept  the  horse  and  sought 
damages  for  the  breach.  The  clause  by  which  the  appellants  agreed 
that  the  horse  might  be  returned  if  there  was  a  breach  of  the  war- 
ranty only  operated  to  give  the  appellee  that  privilege,  which  otherwise 
he  would  not  have  had." 


592  REMEDIES    OF    THE    BUYER  ON    THE    CONTRACT  (Ch.  7 

The  supreme  court  of  Wisconsin  has  affirmed  the  same  doctrine  in 
Osborne  v.  McQueen,  67  Wis.  392,  29  N.  W.  636,  and  in  Park  v.  Rich- 
ardson &  BoynTon  Co.,  81  Wis.  399,  51  N.  W.  572. 

I  have  examined  all  the  cases  cited  by  the  defendants  in  opposition 
to  this  construction  of  the  warranty,  and  have  not  found  one  that 
may  be  properly  said  to  take  the  other  view  and  support  the  defend- 
ants' contention.  In  most  of  them  there  is  a  plain  obligation  upon  the 
purchaser  to  return,  either  expressed  or  necessarily  implied. 

One  case  which  is  relied  upon  by  the  defendants  is  Himes  v.  Kiehl, 
154  Pa.  190,  25  Atl.  632.  In  that  case  the  warranty  related  to  the 
sale  of  an  engine,  and  the  point  made  by  the  defendants  in  an  action 
upon  the  warranty  was  based  upon  the  proposition  that  the  guaranty 
in  suit  was  "that  the  engine  would  give  sufficient  power  to  run  the 
separator,  or  that  they  would  take  it  back,"  and  that  the  plaintiffs, 
without  complaint  or  offer  to  return  the  engine,  continued  to  use  it, 
and  afterwards  sold  it,  without  an  offer  to  return.  The  court  held 
the  contention  good,  and  that  it  should  have  been  affirmed.  In  that 
case  it  was  clearly  a  condition  of  the  guaranty  that  the  engine  should 
be  taken  back  if  it  did  not  give  sufficient  power  to  run  the  separator. 
That  was  all  the  guaranty  there  was. 

In  another  case  much  relied  upon  on  the  hearing  (Hills  v.  Bannister, 
8  Cow.  [N.  Y.]  32),  there  was  a  sale  of  a  church  bell,  and  the  vendor 
had  guarantied  that  it  should  not  crack  for  one  year,  and  to  recast  it 
if  it  did  crack.  It  was  properly  held  that  an  action  was  not  maintain- 
able without  first  giving  the  sellers  an  opportunity  to  recast  the  bell. 
That  was  the  substance  of  their  guaranty, — that  they  would  recast  the 
bell  in  case  it  cracked  within,  the  year, — and  the  law  would  not  hold 
them  to  any  other  or  different  measure  of  relief. 

In  the  proper  construction  of  the  warranty  in  the  case  at  bar,  there 
are  one  or  two  other  considerations  which  I  think  should  have  some 
weight.  The  warranty  is  in  print,  being  part  and  parcel  of  a  printed 
blank  for  the  sale  of  horses  by  the  defendants,  furnished  and  in  com- 
mon use  by  them.  The  guaranty  is  absolute  and  complete  in  itself, 
closing  with  a  full  stop.  The  provision  for  a  return  of  the  horse, 
which  is  superadded,  does  not  in  terms  make  it  obligatory  upon  the 
purchasers  to  return  him.  It  only  says  that  upon  his  delivery  to  the 
sellers  without  cost,  if  as  sound  and  in  as  good  condition  as  when 
purchased,  the  sellers  will  replace  him  with  another  horse.  It  is  only 
by  construction  that  any  obligation  can  be  put  upon  the  purchasers 
to  return  the  horse.  It  would  have  been  very  easy  by  the  change  of 
a  few  words,  to  have  placed  the  obligation  upon  the  purchasers,  in  ex- 
press terms,  that  is  now  sought  to  be  put  upon  them  by  construction. 
Under  these  circumstances,  it  would  seem  proper  to  apply  the  rule  that 
is  sometimes  applied,  that,  when  there  is  doubt  about  the  proper  con- 
struction, to  construe  the  contract  most  strongly  against  the  person  fur- 
nishing the  printed  blank  containing  the  provision  in  question. 

It  is  evident  that,  if  the  construction  contended  for  by  the  defend- 


Ch.  7)  REMEDIES    OF    THE    BUYER  ON    THE    CONTRACT  593 

ants  be  the  true  one,  the  remedy  under  the  warranty,  in  the  circum- 
stances of  this  case,  might  amount  to  but  very  little.  Under  the  pro- 
vision that  the  horse  must  be  as  sound  and  in  as  good  condition  when 
returned  as  at  the  time  of  the  sale,  it  is  evident  that  the  purchasers 
could  refuse  to  receive  him  back  if  he  lacked  in  any  degree  of  being 
in  as  good  condition  as  when  sold.  The  sale  was  in  March.  The 
foal-getting  qualities  of  the  horse  could  not  be  tested  until  late  in  the 
season  of  that  year.  If  in  the  meantime  a  ringbone  or  spavin  or  other 
defect  should  come  upon  the  horse,  or  he  should  have  any  distemper  or 
sickness  common  to  horses,  without  any  fault  on  the  plaintiffs'  part, 
and  perhaps  from  causes  existing  before  the  sale,  the  vendors  might 
refuse  to  receive  the  horse  back,  though  the  defect  may  have  had  no 
relation  to  or  effect  upon  his  value  for  the  purposes  for  which  he  was 
sold,  in  which  case  the  purchasers  would  have  no  benefit  from  the 
warranty. 

There  is  a  provision  in  writing  filled  into  the  blank  which  shows 
quite  clearly  that  the  vendors  intended  to  have  it  in  their  power  to  take 
advantage  of  any  slight  defect  or  ailment  whatsoever  in  the  horse  aris- 
ing after  the  sale,  though  it  should  have  no  relation  to  his  qualities  as 
a  foal  getter.  That  provision  is  this,  that :  "In  case  this  horse  is  re- 
turned on  account  of  not  being  a  reasonable  foal  getter,  a  lump  on 
inside  right  fore  leg,  and  below  the  knee,  shall  not  be  considered  a 
blemish  and  reason  for  not  taking  him  back,  as  a  small  injury  appears 
there  now." 

If  he  did  not  prove  to  be  a  good  foal  getter,  which  could  not  be 
tested  until  one  season  had  elapsed,  and  could  not  be  returned  on  ac- 
count of  some  small  blemish  not  affecting  materially  his  value,  which 
rendered  him  in  not  so  good  a  condition  as  at  the  time  of  the  sale, 
the  warranty  would  be  of  no  appreciable  value,  if  there  were  no  rem- 
edy for  a  breach  except  to  return  the  horse.  Such  a  result,  consid- 
ering the  language  used,  could  hardly  have  been  in  the  contemplation 
of  the  parties. 

The  motion  for  a  new  trial  is  denied.^ 

8  Compare  Wasatch  Orchard  Co.  v.  M^organ  Canning  Co.,  32  Utah,  229,  89 
Pac.  1009,  12  L.  R.  A.  (N.  S.)  540  (1907),  and  Nutting  v.  Watson,  Woods  Bros. 
&  Kelly  Co.,  84  Neb.  464,  121  N.  W.  582,  25  L.  R.  A.  (N.  S.)  823  (1909). 

Wood  w.  Sales — 38 


594  STATUTE    OF  FRAUDS  (Ch.  8 

CHAPTER  VIII 
STATUTE  OF  FRAUDS 


29  Car.  II,  c.  3,  §  17. 

"And  be  it  further  enacted  by  the  authority  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  June  [A.  D.  1677]  no 
contract  for  the  sale  of  any  goods,  wares,  and  merchandises,  for  the 
price  of  ten  pounds  sterHng  or  upwards,  shall  be  allowed  to  be  good, 
except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually 
receive  the  same,  or  give  something  in  earnest  to  bind  the  bargain  or 
in  part  of  payment,  or  that  some  note  or  memorandum  in  writing  of  the 
said  bargain  be  made  and  signed  by  the  parties  to  be  charged  by  such 
contract,  or  their  agents  thereunto  lawfully  authorized." 


SECTION  1.— "CONTRACT  FOR  THE  SALE  OF  GOODS" 


COOKE  et  al.  v.  MILLARD  et  al. 
(Commission  of  Appeals  of  New  York,  1875.     65  N.  Y.  352,  22  Am.  Rep.  619.) 

DwiGHT,  c.^  *  *  *  The  question  is  thus  reduced  to  the  fol- 
lowing proposition :  Is  a  contract  which  is,  in  form,  one  of  sale  of 
lumber  then  in  existence  for  a  fixed  price,  where  the  seller  agrees  to 
put  it  into  a  state  of  fitness  to  fill  the  order  of  the  purchaser,  his  work 
being  included  in  the  price,  in  fact  a  contract  for  work  and  labor  and 
not  one  of  sale,  and  accordingly  not  within  the  statute  of  frauds? 

The  New  York  statute  is  made  applicable  to  the  "sale  of  any  goods, 
chattels  or  things  in  action,"  for  the  price  of  $50  or  more.  The  words 
"goods  and  chattels"  are,  literally  taken,  probably  more  comprehensive 
than  the  expressions  in  the  English  statute,  "goods,  wares  and  mer- 
chandise." It  will  be  assumed  however  in  this  discussion,  that  they 
are  equivalent. 

There  are  at  least  three  distinct  views  as  to  the  meaning  of  the 
words  in  the  statute.  These  may  be  called,  for  the  sake  of  conven- 
ience, the  English,  the  Massachusetts  and  the  New  York  rules,  as 
representing  the  decisions  in  the  respective  courts. 

The  English  rule  lays  especial  stress  upon  the  point,  whether  the 
articles  bargained  for  can  be  regarded  as  goods  capable  of  sale  by  the 

1  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  1)  "contract  for  the  sale  op  goods"  595 

professed  seller  at  the  time  of  delivery,  without  any  reference  to  the 
inquiry  whether  they  were  in  existence  at  the  time  of  the  contract  or 
not.  If  a  manufacturer  is  to  produce  an  article  which  at  the  time  of 
the  delivery  could  be  the  subject  of  sale  by  him,  the  case  is  within  the 
statute  of  frauds.  The  rule  excludes  all  cases  where  work  is  done 
upon  the  goods  of  another,  or  even  materials  supplied  or  added  to  the 
goods  of  another.  Thus  if  a  carriage-maker  should  repair  my  car- 
riage, both  furnishing  labor  and  supplying  materials,  it  would  be  a 
contract  for  work  and  labor,  as  the  whole  result  of  his  efforts  would 
not  produce  a  chattel  which  could  be  the  subject  of  sale  by  him.  If 
on  the  other  hand,  by  the  contract  he  lays  out  work  or  materials,  or 
both,  so  as  to  produce  a  chattel  which  he  could  sell  to  me,  the  con- 
tract is  within  the  statute. 

This  conclusion  has  been  reached  only  after  great  discussion  and 
much  fluctuation  of  opinion,  but  must  now  be  regarded  as  settled. 
The  leading  case  upon  this  point  is  Lee  v.  Griffin,  1  Best  &  Smith, 
272,  Benj.  Sales,  77 .  The  action  was  there  brought  by  a  dentist  to 
recover  £21  sterling  for  two  sets  of  artificial  teeth,  made  for  a  de- 
ceased lady  of  whose  estate  the  defendant  was  executor.  The  court 
held  this  to  be  the  sale  of  a  chattel  within  the  statute  of  frauds.  Black- 
burn, J.,  stated  the  principle  of  the  decision  in  a  clear  manner :  "If 
the  contract  be  such  that  it  will  result  in  the  sale  of  a  chattel,  then 
it  constitutes  a  sale,  but  if  the  work  and  labor  be  bestowed  in  such 
a  manner  as  that  the  result  would  not  be  any  thing  which  could  prop- 
erly be  said  to  be  the  subject  of  sale,  the  action  is  for  work  and  labor." 

The  Massachusetts  rule,  as  applicable  to  goods  manufactured  or 
modified  after  the  bargain  for  them  is  made,  mainly  regards  the  point 
whether  the  products  can,  at  the  time  stipulated  for  delivery,  be  re- 
garded as  "goods,  wares  and  merchandise,"  in  the  sense  of  being  gen- 
erally marketable  commodities  made  by  the  manufacturer.  In  that 
respect  it  agrees  with  the  English  rule.  The  test  is  not  the  non-ex- 
istence of  the  commodity  at  the  time  of  the  bargain.  It  is  rather 
whether  the  manufacturer  produces  the  article  in  the  general  course 
of  his  business  or  as  the  result  oi  a  special  order.  Goddard  v.  Bin- 
ney,  115  Mass.  450,  15  Am.  Rep.  112.  In  this  very  recent  case,  the 
result  of  their  decisions  is  stated  in  the  following  terms :  "A  contract 
for  the  sale  of  articles  then  existing,  or  such  as  the  vendor  in  the  ordi- 
nary course  of  his  business  manufactures  or  procures  for  the  general 
market,  whether  on  hand  at  the  time  or  not,  is  a  contract  for  the  sale 
of  goods  to  which  the  statute  applies.  But  on  the  other  hand,  if  the 
goods  are  to  be  manufactured  especially  for  the  purchaser  and  upon 
his  special  order,  and  not  for  the  general  market,  the  case  is  not  within 
the  statute." 

Under  this  rule  it  was  held  in  Gardner  v.  Joy,  9  Mete.  177,  that  a 
contract  to  buy  a  certain  number  of  boxes  of  candles  at  a  fixed  price 
per  pound,  which  the  vendor  said  he  would  manufacture  and  deliver 


596  STATUTE    OF    FRAUDS  (Cll.  8 

in  about  three  months,  was  held  to  be  a  contract  of  sale.  On  the 
other  hand  in  Goddard  v.  Binney,  supra,  the  contract  with  a  carriage 
manufacturer  was  that  he  should  make  a  buggy  for  the  person 
ordering  it,  that  the  color  of  the  lining  should  be  drab  and  the  out- 
side seat  of  cane,  and  have  on  it  the  monogram  and  initials  of  the 
party  for  whom  it  was  made.  This  was  held  not  to  be  a  contract  of 
sale  within  the  statute.  See,  also,  Mixer  v.  Howarth,  21  Pick.  205,  32 
Am.  Dec.  256;  Lamb  v.  Crafts,  12  Mete.  353;  Spencer  v.  Cone,  1 
Mete.  283. 

The  New  York  rule  is  still  different.  It  is  held  here  by  a  long 
course  of  decisions  that  an  agreement  for  the  sale  of  any  commodity 
not  in  existence  at  the  time,  but  which  the  vendor  is  to  manufacture 
or  put  in  a  condition  to  be  delivered,  such  as  flour  from  wheat  not  yet 
ground,  or  nails  to  be  made  from  iron  belonging  to  the  manufacturer, 
is  not  a  contract  of  sale.  The  New  York  rule  lays  stress  on  the  word 
"sale."  There  must  be  a  sale  at  the  time  the  contract  is  made.  The 
latest  and  most  authorative  expression  of  the  rule  is  found  in  a  recent 
case  in  this  court.  Parsons  v,  Loucks,  48  N.  Y.  17,  19,  8  Am.  Rep. 
517. 

The  contrast  between  Parsons  v.  Loucks,  in  this  state,  on  the  one 
hand,  and  Lee  v.  Griffin,  supra,  in  England,  on  the  other,  is,  that  in 
the  former  case  the  word  "sale"  refers  to  the  time  of  entering  into 
the  contract,  while  in  the  latter,  reference  is  had  to  the  time  of  deliv- 
ery, as  contemplated  by  the  parties.  If  at  that  time  it  is  a  chattel  it 
is  enough,  according  to  the  English  rule.  Other  cases  in  this  state 
agreeing  with  Parsons  v.  Loucks  are  Crookshank  v.  Burrel,  18  Johns. 
58,  9  Am.  Dec.  187;  Sewall  v.  Fitch,  8  Cow.  215;  Robertson  v. 
\*aughn,  5  Sandf.  1 ;  Parker  v.  Schenck,  28  Barb.  38.  These  cases 
are  based  on  certain  old  decisions  in  England,  such  as  Towers  v.  Os- 
borne, 1  Strange,  506,  and  Clayton  v.  Andrews,  4  Burr.  2101,  wliicb 
have  been  wholly  discarded  in  that  country. 

The  case  at  bar  does  not  fall  within  the  rule  in  Parsons  v.  Loucks. 
The  facts  of  that  case  were  that  a  manufacturer  agreed  to  make  for 
the  other  party  to  the  contract,  two  tons  of  book  paper.  The  paper 
was  not  in  existence,  and  so  far  as  appears,  not  even  the  rags,  "ex- 
cept so  far  as  such  existence  may  be  argued  from  the  fact  that  mat' 
ter  is  indestructible."  So  in  Sewall  v.  Fitch,  supra,  the  nails  which 
were  the  subject  of  the  contract  were  not  then  wrought  out,  but  were 
to  be  made  and  delivered  at  a  future  day. 

Nothing  of  this  kind  is  found  in  the  present  case.  The  lumber, 
with  the  possible  exception  of  the  clapboards,  was  all  in  existence 
when  the  contract  was  made.  It  only  needed  to  be  prepared  for  the 
purchaser — dressed  and  put  in  a  condition  to  fill  his  order.  The  court 
accordingly  is  not  hampered  in  the  disposition  of  this  cause  by  au- 
thority, but  may  proceed  upon  principle. 

Were  this  subject  now  open  to  full  discussion  upon  principle,  no 


Sec.  1)  "contract  for  the  sale  of  goods"  597 

more  convenient  and  easily  understood  rule  could  be  adopted  than 
that  enunciated  in  Lee  v.  Griffin.  It  is  at  once  so  philosophical  and 
so  readily  comprehensible,  that  it  is  a  matter  of  surprise  that  it  should 
have  been  first  announced  at  so  late  a  stage  in  the  discussion  of  the 
statute.  It  is  too  late  to  adopt  it  in  full  in  this  State.  So  far  as  au- 
thoritative decisions  have  gone,  they  must  be  respected,  even  at  the 
expense  of  sound  principle.  The  court  however  in  view  of  the  pres- 
ent state  of  the  law,  should  plant  itself,  so  far  as  it  is  not  precluded 
from  doing  so  by  authority,  upon  some  clearly  intelligible  ground,  and 
introduce  no  more  nice  and  perplexing  distinctions.  I  think  that  the 
true  rule  to  be  applied  in  this  State,  is  that  when  the  chattel  is  in  exist- 
ence, so  as  not  to  be  governed  by  Parsons  v.  Loucks,  supra,  the  con- 
tract should  be  deemed  to  be  one  of  sale,  even  though  it  may  have 
been  ordered  from  a  seller  who  is  to  do  some  work  upon  it  to  adapt 
it  to  the  uses  of  the  purchaser.  Such  a  rule  makes  but  a  single  dis- 
tinction, and  that  is  between  existing  and  non-existing  chattels.  There 
will  still  be  border  cases  where  it  will  be  difficult  to  draw  the  line, 
and  to  discover  whether  the  chattels  are  in  existence  or  not.  The 
mass  of  the  cases  will  however  readily  be  classified.  If,  on  further 
discussion,  the  rule  in  Lee  v.  Griffin  should  be  found  most  desirable 
as  applicable  to  both  kinds  of  transactions,  a  proper  case  will  be  pre- 
sented for  the  consideration  of  the  Legislature.     *     *     * 


EVANS  v.  ROBERTS. 

(Court  of  King's  Bench,  182G.     5  Barn.  &  C.  829.) 

Indebitatus  assumpsit,  for  crops  of  potatoes  bargained  and  sold. 
Plea,  the  general  issue.  At  the  trial  before  Garrow,  B.,  at  the  Spring 
assizes  for  the  county  of  Monmouth,  1826,  it  appeared,  that  on  the 
25th  of  September,  a  verbal  agreement  was  made  between  the  plain- 
tiff and  defendant,  by  which  the  defendant  agreed  to  purchase  of  the 
plaintiff  a  cover  of  potatoes  then  in  the  ground,  to  be  turned  up  by 
the  plaintiff',  at  the  price  of  i5.,  and  the  defendant  paid  Is.  earnest. 
It  was  objected,  that  this  was  a  contract  or  sale  of  an  interest  in  or 
concerning  land,  within  the  meaning  of  the  fourth  section  of  the  stat- 
ute of  frauds.  The  learned  Judge  was  of  opinion,  that  as  the  seller 
was  to  turn  up  the  potatoes,  the  contract  did  not  give  the  buyer  any 
interest  in  the  land ;  and  he  directed  a  verdict  to  be  found  for  the 
plaintiff,  but  reserved  liberty  to  the  defendant  to  move  to  enter  a  non- 
suit. 

Bayi,e;y,  J.  I  am  of  opinion,  that  in  this  case  there  was  not  a  con- 
tract for  the  sale  of  any  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  concerning  them,  but  a  contract  only  for  the  sale  and 
delivery  of  things  which,  at  the  time  of  the  delivery,  should  be  goods 
and  chattels.     It  appears  that  the  contract  was  for  a  cover  of  pota- 


598  STATUTE    OF   FRAUDS  (Ch.  8 

toes ;  the  vendor  was  to  raise  the  potatoes  from  the  ground  at  the 
request  of  the  vendee.  The  effect  of  the  contract,  therefore,  was  to 
give  to  the  buyer  a  right  to  aU  the  potatoes  which  a  given  quantity  of 
land  should  produce,  but  not  to  give  him  any  right  to  the  possession 
of  the  land ;  he  was  merely  to  have  the  potatoes  delivered  to  him  when 
their  growth  was  complete.  ]\Iost  of  the  authorities  cited  in  the 
course  of  the  argument,  to  show  that  this  contract  gave  the  vendee  an 
interest  in  the  land  w'ithin  the  meaning  of  the  fourth  section  of  the 
statute  of  frauds,  are  distinguishable  from  the  present  case. 

In  Crosby  v.  Wads  worth,  6  East,  602,  the  buyer  did  acquire  an  in- 
terest in  the  land;  for,  by  the  terms  of  the  contract,  he  was  to  mow 
the  grass,  and  must,  therefore,  have  had  the  possession  of  the  land 
for  that  purpose.  Besides,  in  that  case,  the  contract  was  for  the  grow- 
ing grass,  which  is  the  natural  and  permanent  produce  of  the  land, 
renewed  from  time  to  time  without  cultivation.  Now,  growing  grass 
does  not  come  within  the  description  of  goods  and  chattels,  and  can- 
not be  seized  as  such  under  a  fi.  fa. ;  it  goes  to  the  heir  and  not  to  the 
executor;  but  growing  potatoes  come  within  the  description  of  em- 
blements, and  are  deemed  chattels,  by  reason  of  their  being  raised  by 
labor  and  manurance.  They  go  to  the  executor  of  tenant  in  fee  sim- 
ple, although  they  are  fixed  to  the  freehold  [see  Com.  Dig.  tit.  Biens 
(G,)  and  Gilbert's  Law  of  Evidence,  214,]  and  may  be  taken  in  exe- 
cution under  a  fi.  fa.,  by  which  the  sheriff  is  commanded  to  levy  the 
debt  of  the  goods  and  chattels  of  the  defendant ;  and  if  a  growing 
crop  of  potatoes  be  chattels,  then  they  are  not  within  the  provisions 
of  the  fourth  section  of  the  statute  of  frauds,  which  relates  to  lands, 
tenements,  or  hereditaments,  or  any  interest  in  or  concerning  them. 

In  Parker  v.  Staniland,  11  East,  362,  the  owner  of  a  close  cropped 
with  potatoes,  made  a  contract  on  the  21st  of  November,  to  sell  them 
at  so  much  per  sack,  and  the  purchaser  was  to  raise  them  from  the 
ground  immediately;  and  that  was  held  not  to  be  a  contract  for  any 
interest  in  or  concerning  land.  In  that  case,  as  well  as  in  Warwick 
V.  Bruce,  2  M.  &  S.  205,  the  potatoes  had  ceased  to  grow;  and,  there- 
fore, they  are  distinguishable  from  the  present ;  but  the  reasoning  of 
Lord  Ellenborough  in  the  latter  case  may  assist  us  in  coming  to  a 
right  conclusion  in  the  present;  he  there  says:  "If  this  had  been  a 
contract  conferring  an  exclusive  right  to  the  land  for  a  time,  for  the 
purpose  of  making  a  profit  of  the  growing  surface,  it  would  be  a  con- 
tract for  the  sale  of  an  interest  in  or  concerning  lands,  and  would  then 
fall  unquestionably  within  the  range  of  Crosby  v.  Wadsworth,  6 
East,  602.  But  here  is  a  contract  for  the  sale  of  potatoes  at  so  much 
per  acre:  the  potatoes  are  the  subject  matter  of  sale;  and  whether 
at  the  time  of  sale  they  were  covered  with  earth  in  the  field,  or  in  a 
box,  still  it  was  a  sale  of  a  mere  chattel."  It  does  not  appear  that  the 
other  Judges  gave  any  opinion  upon  that  point ;  but  it  is  clear  that 
Lord  EUenborough's  judgment  proceeded  upon  the  ground  that  if  the 


Sec.  1)  "contract  for  the  sale  of  goods"  599 

contract  gave  to  the  vendee  no  right  to  the  land  so  as  to  enable  him 
to  make  a  profit  of  the  growing  surface,  then  it  was  not  to  be  con- 
sidered as  giving  him  an  interest  in  the  land,  but  merely  in  a  chattel. 

The  opinion  delivered  by  Mansfield,  C.  J.,  in  Emmerson  v,  Heelis,  2 
Taunt.  38,  is  certainly  at  variance  with  our  judgment  in  the  present 
case.  But  it  is  first  to  be  observed,  that  it  was  not  necessary  in  that 
case  for  the  Court  to  decide  the  question  upon  the  fourth  section  of 
the  statute  of  frauds,  for  the  contract  was  signed  by  the  auctioneer 
as  the  agent  of  the  buyer,  and  was  equally  binding  whether  it  was  for  a 
sale  of  goods  and  chattels  or  of  an  interest  in  land.  The  plaintiff 
there  put  up  to  sale  on  the  25th  of  September,  by  public  auction,  a 
crop  of  turnips  then  growing  on  his  land,  in  separate  lots,  and  under 
certain  conditions  of  sale.  The  defendant,  by  his  agent,  attended  at 
the  sale,  and  being  the  highest  bidder  for  twenty-seven  different  lots, 
was  declared  to  be  the  purchaser ;  and  the  name  of  the  defendant  was 
written  in  the  sale  bill  opposite  to  each  particular  lot  for  which  he 
had  been  declared  the  highest  bidder.  Mansfield,  C.  J.,  there  says, 
"As  to  this  being  an  interest  in  land,  we  do  not  see  how  it  can  be  dis- 
tinguished from  the  case  of  hops  decided  in  this  court;  and  if  the 
auctioneer  is  an  agent  for  the  purchaser,  then  the  statute  of  frauds  is 
satisfied,  because  the  memorandum  in  writing  is  signed  by  an  agent 
for  the  party  to  be  charged  therewith." 

The  ground  of  the  Lord  Chief  Justice's  opinion,  as  to  the  contract 
giving  the  purchaser  an  interest  in  the  land,  was  that  the  case  could 
not  be  distinguished  from  that  of  Waddington  v.  Bristow,  2  Bos.  & 
Pul.  452.  It  becomes  necessary,  therefore,  to  consider  whether  the 
two  cases  be  similar.  In  the  latter  case  the  contract  was  made  in  No- 
vember for  all  the  hops  which  should  be  grown  in  the  ensuing  year 
upon  a  given  number  of  acres  of  land.  At  that  time  the  hops  which 
were  the  subject  of  the  contract  were  not  in  existence;  there  was 
nothing  but  the  root  of  the  plant,  and  the  purchaser  was  not  to  have 
that.  The  question  in  that  case  was,  not  whether  the  agreement,  which 
was  in  writing,  was  for  an  interest  in  the  land,  but  whether  it  ought 
to  have  been  stamped.  It  was  contended  that  it  was  within  the  ex- 
ception in  the  stamp  act,  an  agreement  made  for  and  relating  to  the 
sale  of  goods,  wares,  and  merchandise.  All  the  Judges  concurred  in 
the  judgment  that  the  contract  in  that  case  was  not  an  agreement  for 
the  sale  of  goods,  wares,  and  merchandise;  but  their  opinions  were 
founded  upon  different  reasons.  Lord  /Vlvanley  thought  that  it  was 
an  agreement  for  the  sale  of  goods,  wares,  and  merchandise,  and 
something  more,  viz.  for  the  produce  of  the  land  in  a  certain  state  at 
the  time  of  delivery.  The  opinions  of  Heath  and  Rooke,  Js.,  pro- 
ceeded on  the  ground  that  the  hops  at  the  time  of  the  contract  did  not 
exist  as  goods,  wares,  and  merchandise.  Chambre,  J.,  was  the  only 
Judge  who  intimated  an  opinion  that  the  contract  gave  the  vendee  an 
interest  in  the  land.     He  certainly  stated  that  the  contract  gave  the 


000  STATUTE    OF   FRAUDS  (Ch.  8 

vendee  an  interest  in  the  produce  of  the  whole  of  that  part  of  the 
vendor's  farm  which  consisted  of  hop  grounds. 

I  concur  in  opinion  with  the  three  learned  Judges,  who  thought  in 
that  case  that  the  hops  were  not  goods,  wares,  and  merchandise  at 
the  time  of  the  contract ;  but  I  do  not  agree  with  Lord  Chief  Justice 
Mansfield  that  there  was  no  distinction  between  the  hops  in  that  case 
and  the  growing  turnips  in  the  case  of  Emmerson  v.  Heelis,  because 

1  think  that  in  the  latter  case  the  growing  turnips  at  the  time  of  the 
contract  were  chattels.  It  has  been  insisted,  that  the  right  to  have 
the  potatoes  remain  in  the  ground  is  an  interest  in  the  land :  but  a 
party  entitled  to  emblements  has  the  same  right,  and  yet  he  is  not  by 
virtue  of  that  right  considered  to  have  any  interest  in  the  land.  For 
the  land  goes  to  the  heir,  but  the  emblements  go  to  the  executor. 

In  Tidd's  Practice,  1039,  it  is  laid  down  that  under  a  fieri  facias 
the  sheriff  may  sell  fructus  industrialis,  as  corn  growing,  which  goes  to 
the  executor,  or  fixtures  which  may  be  removed  by  the  tenant ;  but  not 
furnaces  or  apples  upon  trees,  which  belong  to  the  freehold,  and  go 
to  the  heir.  The  distinction  is  between  those  things  which  go  to  the  ex- 
ecutor and  those  which  go  to  the  heir.  The  former  may  be  seized  and 
sold  under  the  fi.  fa.,  the  latter  cannot.  The  former  must,  therefore,  in 
contemplation  of  law,  be  considered  chattels.  It  appears,  therefore, 
that  when  it  was  necessary  at  common  law  to  distinguish  between 
what  was  land  and  what  was  not,  a  growing  crop  produced  by  the 
labor  and  expense  of  the  occupier  of  lands  was,  as  the  representative 
of  that  labor  and  expense,  considered  an  independent  chattel,  not  go- 
ing as  the  land  does,  but  in  a  different  direction.  Upon  the  same 
principle  the  purchaser  of  a  growing  crop,  who  by  his  contract  ac- 
quires a  right  to  have  the  crop  continue  in  the  land  of  the  seller  until 
it  arrived  at  maturity,  must,  before  the  passing  of  the  statute  of 
frauds,  have  been  considered  to  have  had  an  interest  not  in  the  land, 
but  in  a  chattel  independent  of  the  land;  and  that  being  so,  I  cannot 
suppose  that  by  the  fourth  section  of  that  statute,  which  enacts,  that 
unless  certain  provisions  be  complied  with,  no  action  shall  be  brought 
upon  any  contract  or  sale  of  any  interest  in  or  concerning  lands,  tene- 
ments, or  hereditaments,  the  legislature  contemplated,  as  the  subject 
matter  of  such  contract  or  sale,  that  interest  which  passes  from  a  ven- 
dor to  a  vendee  by  a  sale  of  a  growing  crop  of  potatoes. 

The  statute  56  G.  3,  c.  50,  indeed,  is  a  legislative  declaration  that 
growing  crops  may  be  seized  and  taken  in  execution  under  a  fi.  fa.  It 
prevents  their  being  so  seized  in  cases  where  the  tenant  is  restrained 
by  covenant  in  his  lease  from  removing  them  off  the  premises.  The 
case  of  Mayfield  v.  Wadsley,  3  B.  &  C.  357,  also  shows,  that  where 
there  is  a  sale  of  growing  crops,  distinct  from  any  assignment  or  let- 
ting of  the  land,  the  crops  do  not  constitute  part  of  the  inheritance, 
or  any  interest  in  land,  but  are  mere  chattels,  and  may  be  recovered 


Sec.  1)  "contract  for  the  sale  of  goods"  601 

under  a  count  for  goods  bargained  and  sold.  Upon  these  grounds, 
I  am  of  opinion  that  there  was  not  in  this  case  any  contract  or  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
them  within  the  fourth  section  of  the  statute  of  frauds ;  but  that  there 
was  a  contract  for  the  sale  of  goods,  wares,  and  merchandise  within 
the  meaning  of  the  seventeenth  section,  though  not  to  the  amount 
which  makes  a  written  note  or  memorandum  of  the  bargain  necessary. 
The  rule  for  entering  a  nonsuit  must  therefore  be  discharged.  Rule 
discharged.  ^ 


MARSHALL  v.  GREEN. 

(Court  of  Common  Pleas,  1875.     L.  R.  1  C.  P.  Div.  35.) 

Lord  Coleridge,  C.  J.  ^  This  is  an  action  in  respect  of  the  entry 
by  the  defendant  upon  certain  land  in  the  occupation  of  the  plain- 
tiff's tenant,  and  the  cutting  down  of  cert'ain  trees.  The  facts  were 
these.  The  plaintiff  was  the  owner  in  fee  of  a  copyhold  tenement 
on  which  certain  timber  trees  were  growing.  The  tenement  was  un- 
der lease,  but  the  custom  of  the  manor  reserved  the  trees  upon  the 
tenement  leased  to  the  owner  in  fee  of  the  copyhold  tenement. 
The  plaintiff  had  communicated  with  the  defendant,  a  timber  mer- 
chant, on  the  subject  of  his  wish  to  sell  the  trees;  but  some  question 
had  arisen  as  to  the  number  of  the  trees,  and  it  was  agreed  that  the 
plaintiff  and  defendant  should  go  over  the  land  together  to  inspect 
the  trees.  On  the  27th  of  February  they  went  over  the  land  for 
that  purpose,  and  there  was  then  a  parol  sale  of  twenty-two  trees 
at  the  price  of  £26.,  and  it  was  arranged  that  the  trees  should  be 
"got  away  as  soon  as  possible."  The  defendant's  servants  entered, 
and  on  the  2d,  3d,  and  4th,  of  March,  they  cut  down  the  trees.  On 
the  2d  of  March,  after  six  trees  had  been  cut  down,  the  plaintiff 
wrote  countermanding  the  sale.  The  defendant  had  sold  the  tops 
and  stumps  before  receipt  of  the  letter  of  countermand ;  but,  though 
sold  before,  they  were  not  taken  away  until  after  such  letter  was 
received.  If  there  was  a  valid  contract  for  the  sale  of  the  trees,  the 
plaintiff  must  fail ;  the  trees  had  been  sold,  and  the  property  had 
passed ;  the  land  was  not  in  the  plaintiff's  possession,  but  his  tenant's, 
and  the  defendant  had  a  perfect  right  to  do  what  he  did. 

It  is  not  denied  that  there  was  a  verbal  contract,  and  the  question 
therefore  is  whether  this  was  a  contract  which  required  to  be  in 
writing  under  the  Statute  of  Frauds.  If  so,  the  defendant  was  in 
the  wrong,  because  there  was  no  such  contract.  The  first  question 
is  whether  this  was  a  contract  within  the  4th  section,  as  being  a 
"contract  or  sale  of  lands,  tenements,   or  hereditaments,  or  any  in- 

2  Concurring  opinions  were  delivered  by  Holroyd  and  Littledale,  JJ. 
8  The  statement  of  facts  is  omitted. 


<302  STATUTE    OF   FRAUDS  (Ch.  8 

terest  in  or  concexning  them."  These  words  have  given  rise  to  a 
great  deal  of  discussion,  and  very  high  authorities  have  said  that  it 
is  impossible  to  reconcile  all  the  decisions  on  the  subject.  If  the 
matter  were  res  integra,  I  should  be  inclined  to  think  that  there  was 
much  to  be  said  for  Littledale,  J.'s  view,  that  the  words  of  the 
statute  were  never  meant  to  apply  to  such  a  matter  as  this  at  all, 
but  only  referred  to  such  interests  as  are  known  to  conveyancers. 
It  is,  howeier,  too  late  now  to  maintain  this  view,  inasmuch  as  there 
are  a  great  number  of  decisions  which  proceed  on  the  opposite  view. 
It  is  clear  on  the  decisions  that  there  are  certain  natural  growths 
which,  under  certain  circumstances,  have  been  held  to  be  within  the 
words  of  the  section,  and  a  contract  with  respect  to  which  must, 
therefore,  be  in  writing. 

The  question  then  is  what  the  rule  is  to  be.  The  matter  has  been 
much  discussed,  and  for  my  part  I  despair  of  laying  down  any  rule 
which  can  stand  the  test  of  every  conceivable  case.  If  it  is  said 
that  there  is  an  interest  in  land  within  the  section  when  the  sale  is 
of  something  which,  before  it  is  taken  away,  is  to  derive  benefit 
from  the  land,  and  to  become  altered  by  virtue  of  what  it  draws 
from  the  soil,  the  rule  is  an  intelligible  one,  but  one  which  it  is  al- 
most impossible  to  apply  with  absolute  strictness.  The  effect  of  such 
a  rule,  if  strictly  applied,  would  vary  at  different  times  of  the  year. 
If  the  sale  were  in  the  spring,  and  the  removal  of  the  thing  sold  were 
to  be  postponed  but  for  two  or  three  days,  it  would  not,  at  its  sev- 
erance, in  strictness,  be  in  the  same  state  as  it  was  at  the  time  of 
the  sale.  On  the  other  hand,  in  winter,  when  the  sap  is  out  of  the 
tree,  and  it  is  standing,  as  it  were,  dead  for  the  time  being,  there 
would  be  no  appreciable  change.  It  is  almost  impossible  to  say  that 
the  rule  can  be  that,  wherever  anything,  however  small,  is  to  pass 
into  that  which  grows  on  the  land,  out  of  the  land,  between  the  sale 
and  the  reduction  into  possession,  the  contract  is  within  the  section. 

I  find  the  following  statement  of  the  law  with  regard  to  this  sub- 
ject, which  must  be  taken  to  have  received  the  sanction  of  that  learn- 
ed judge.  Sir  Edward  Vaughan  Williams,  in  the  notes  in  the  last 
edition  of  Williams'  Saunders  upon  the  case  of  Duppa  v.  Mayo,  p. 
395 :  "The  principle  of  these  decisions  appears  to  be  this,  that  wher- 
ever at  the  time  of  the  contract  it  is  contemplated  that  the  purchaser 
should  derive  a  benefit  from  the  further  growth  of  the  thing  sold 
from  further  vegetation  and  from  the  nutriment  to  be  afforded  by 
the  land,  the  contract  is  to  be  considered  as  for  an  interest  in  land ; 
but  where  the  process  of  vegetation  is  over,  or  the  parties  agree 
that  the  thing  sold  shall  be  immediately  withdrawn  from  the  land, 
the  land  is  to  be  considered  as  a  mere  warehouse  of  the  thing  sold, 
and  the  contract  is  for  goods.  This  doctrine  has  been  materially 
qualified  by  later  decisions,  and  it  appears  to  be  now  settled  that, 
with  respect  to  emblements  or  fructus  industrials.  Sec.  the  corn  and 
other   growth   of  the  earth   which   are   produced   not   spontaneously, 


Sec.  1)  "contract  for  the  sale  of  goods"  603 

but  by  labour  and  industry,  a  contract  for  the  sale  of  them  while 
growing,  whether  they  are  in  a  state  of  maturity  or  whether  they 
have  still  to  derive  nutriment  from  the  land  in  order  to  bring  them 
to  that  state,  is  not  a  contract  for  the  sale  of  any  interest  in  land. 
but  merely  for  the  sale  of  goods." 

The  propositions  so  laid  down,  as  applied  to  the  present  case,  seem 
to  afford  a  very  clear  and  intelligible  rule.  Planted  trees  cannot  in 
strictness  be  said  to  be  produced  spontaneously,  yet  the  labour  em- 
ployed in  their  planting  bears  so  small  a  proportion  to  their  natural 
growth,  that  they  cannot  be  considered  as  fructus  industriales,  but 
treating  them  as  not  being  fructus  industriales,  the  proposition  is 
that  where  the  thing  sold  is  to  derive  no  benefit  from  the  land,  and 
is  to  be  taken  away  immediately,  the  contract  is  not  for  an  interest 
in  land.  Here  the  contract  was  that  the  trees  should  be  got  away 
as  soon  as  possible,  and  they  were  almost  immediately  cut  down. 
Apart  from  any  decisions  on  the  subject,  and  as  a  matter  of  common 
sense,  it  would  seem  obvious  that  a  sale  of  twenty-two  trees  to  be 
taken  away  immediately  was  not  a  sale  of  an  interest  in  land,  but 
merely  of   so  much  timber. 

There  do  not  seem  to  be  any  decisions  which  prevent  our  deciding 
in  conformity  with  the  common  sense  of  the  matter.  On  the  con- 
trary, there  is  a  case  of  Smith  v.  Surman,  9  B.  &  C.  561,  in  which 
the  Court  of  Queen's  Bench  held,  under  circumstances  very  like 
those  of  the  present  case,  that  there  was  no  contract  for  an  interest 
in  land.  The  only  distinction  that  I  can  see  between  that  and  the  pres- 
ent case,  is  that  there  the  trees  were  to  be  cut  by  the  vendor ;  but  Lit- 
tledale,  J.,  held  that,  "if  in  that  case  the  contract  had  been  for  the 
sale  of  the  trees,  wuth  a  specific  liberty  to  the  vendee  to  enter  the 
land  to  cut  them,  it  would  not  have  given  him  an  interest  in  land 
within  the  meaning  of  the  statute."  This  decision  has  never  been 
questioned,  and  has  been  adopted  in  subsequent  decisions.  It  seems 
to  me,  therefore,  that  both  common  sense  and  authority  combine  to 
shew  that  this  was  not  a  contract  for  an  interest  in  land  within  the 
section. 

The  remaining  question  is  whether  this  contract  was  within  the 
17th  section.  This  depends  on  whether  there  was  here  an  acceptance 
and  actual  receipt  of  part  of  the  goods.  There  have  been  many  de- 
cisions on  the  question,  what  amounts  to  such  an  acceptance  and 
receipt;  it  was  very  early  determined  that  an  actual  manual  receipt 
of  the  article  sold  was  not  necessary,  but  that  a  constructive  receipt 
would  do.  Here  six  of  the  trees  were  cut  down  before  the  sale  was 
countermanded,  and  at  a  time  when  it  must  be  taken  that  that  was 
done  with  the  assent  of  the  seller,  and  portions  were  sold.  What 
more  could  have  been  done  short  of  actually  removing  the  trees? 
These  were  bulky  trees,  that  a  man  could  not  carry  away  like  a 
small  article,  li  anything  short  of  actual  manual  possession  could 
be  sufficient,  all  was  done  that  could  be  done.     The  defendant  im- 


604  STATUTE    OF   B^RAUDS  (Cll.  8 

mediately  cuts  down  the  trees  and  converts  them  into  chattels,  and 
deals  with  them  as  owner  by  selling  the  tops  and  stumps.  In  the 
absence  of  any  decision  on  the  subject,  I  should  have  said  that,  if 
it  be  once  admitted  that  anything  short  of  actual  manual  possession 
could  be  a  sufficient  acceptance  and  receipt,  there  was  amply  suffi- 
cient to  shew  such  an  acceptance  and  receipt  here. 

But  we  are  not  without  authority  on  the  subject.  There  have  been 
repeated  decisions  that,  where  anything  has  been  done  on  the  part 
of  the  vendee  under  such  a  contract  as  this  to  the  whole  or  part  of 
the  goods  indicating  an  intention  to  deal  with  the  subject-matter  as 
owner  in  possession,  and  he  is  allowed  by  the  vendor  so  to  deal  with 
it,  that  amounts  to  an  acceptance  and  receipt  within  the  statute.  It 
has  been  held  with  regard  to  bulky  things,  that  the  delivery  of  the 
indicia  of  title  was  sufficient.  When  the  purchaser  had  marked  the 
goods,  and  left  them  so  marked  on  the  vendor's  premises,  it  was 
held  that  there  was  a  sufficient  acceptance  and  receipt.  The  case 
of  Chaplin  v.  Rogers,  1  East,  192,  seems  to  me  to  be  a  distinct  au- 
thority for  the  view  that  there  was  an  acceptance  and  receipt  here, 
the  words  of  the  section  having  received  all  the  fulfilment  the  sub- 
ject-matter was  capable  of.  I  do  not  rely  on  the  circumstance  that 
the  land  was  in  the  possession  of  the  plaintiff's  tenant.  It  seems 
to  me  that,  apart  from  that  circumstance,  and  treating  the  land  as 
being  the  vendor's  the  case  is  clear. 

The  result  is  that  the  plaintiff  fails  on  both  points,  and  the  rule 
must  be  absolute. 

Rule  discharged.* 


GREEN  v.  ARMSTRONG. 

(Supreme  Court  of  New  York,  1845.     1  Denio.  550.) 

BeardslEy,  J.  ^  A  verbal  contract  was  made  between  these  par- 
ties, by  which  the  defendant  agreed  to  sell  certain  trees  then  standing 
and  growing  on  his  land,  to  the  plaintiff,  with  liberty  to  cut  and  re- 
move the  same  at  any  time  within  twenty  years  from  the  making  of 
the  contract.  A  part  of  the  trees  were  cut  and  removed  under  this 
agreement,  but  the  defendant  then  refused  to  permit  any  more  to  be 
taken,  and  for  this  the  plaintiff  brought  his  action  in  the  justice's 
court,  where  a  judgment  was  rendered  in  his  favor.  On  the  trial 
of  the  cause  the  defendant  objected  to  proof  of  such  parol  contract, 
but  the  objection  was  overruled.  The  judgment  was  removed  by 
certiorari  to  the  court  of  common  pleas  of  Oneida  county,  and  was 
reversed  by  that  court,  on  the  ground,  as  the  record  states,  that  the 
contract,  not  being   in  writing,  was  void  by  the   statute  of   frauds. 

*  Concurring  opinions  were  delivered  by  Brett  and  Grove,  JJ. 
5  The  statement  of  facts  is  omitted. 


Sec.  1)  "contract  for  the  sale  of  goods"  605 

As  the  declaration  stated  that  the  contract  was  by  parol  and  not 
in  writing,  and  the  defendant  pleaded  instead  of  demurring,  it  is 
now  urged  on  behalf  of  the  plaintiff  in  error,  that  the  defendant  was 
precluded  from  objecting,  on  the  trial  of  the  cause  before  the  justice, 
or  in  the  court  of  common  pleas,  to  proof  of  a  parol  contract,  or 
that  such  contract  was  void.  It  is  insisted  the  defendant  should  have 
demurred,  if  a  verbal  contract  like  this  was  invalid,  and  that  by  plead- 
ing to  the  declaration,  its  sufficiency,  and  consequently  the  validity  of 
the  contract  as  stated,  were  admitted ;  and  if,  in  truth,  the  contract 
was  for  this  reason  void,  the  defendant,  having  failed  to  make  the 
objection  at  the  proper  time  and  in  an  appropriate  manner,  is  now 
remediless. 

If  the  action  had  been  pending  in  this  court,  or  in  a  court  of  com- 
mon pleas,  the  principles  stated  would,  to  a  certain  extent,  have  been 
applicable;  for  the  objection  that  the  contract  was  by  parol  and  not 
in  writing,  could  not  have  been  made  on  the  trial  of  the  issue  joined. 
But  a  verdict  on  the  issue  would  not  have  concluded  the  defendant, 
for  he  might  still  move  in  arrest  of  judgment,  and  thus  raise  the 
question  as  to  the  validity  of  the  contract  declared  on.  A  motion  in 
arrest,  however,  cannot  be  made  in  the  justice's  court,  and  where 
issue  has  been  joined,  as  in  this  case,  if  the  defendant  cannot,  on 
the  trial  or  on  certiorari,  object  that  the  contract  is  void,  he  is  with- 
out any  redress  whatever.  But  pleading  to  a  declaration,  when  the 
party  might  have  demurred,  cannot  be  allowed  to  have  any  such 
conclusive  effect  upon  the  rights  of  the  party :  it  cannot  make  a 
void  contract  valid,  or  at  all  change  the  real  rights  of  the  litigant 
parties.  The  orderly  and  formal  mode  of  making  the  objection 
would  be  by  demurrer  or  motion  in  arrest ;  but  this  is  only  a  mat- 
ter of  form.  And  as  it  was  too  late  to  demur,  and  a  motion  in  ar- 
rest could  not  be  made,  I  have  no  difficulty  in  saying  the  objection 
was  properly  made  on  the  trial,  and  in  the  common  pleas,  and  it 
must  now  be  determined  by  this  court. 

The  Revised  Statutes  declare  that  no  "interest  in  lands"  shall  be 
created,  unless  by  deed  or  conveyance  in  writing;  and  that  every 
contract  for  the  sale  of  "any  interest  in  lands"  shall  be  void  unless 
in  writing.  2  R.  S.  134,  §§  6,  8.  Certain  exceptions  and  qualifica- 
tions to  these  enactments  are  contained  in  the  sections  referred  to, 
but  none  which  touch  the  question  now  before  the  court:  and  so 
far  as  respects  this  question  the  former  statute  of  New- York,  and 
the  English  statute  of  29  Charles  2,  ch.  3,  contain  similar  provisions. 
1  R.  L.  of  1813,  p.  78 ;    Chit,  on  Cont.  299. 

The  precise  question  in  this  case  is,  whether  an  agreement  for 
the  sale  of  growing  trees,  with  a  right  to  enter  on  the  land  at  a  fu- 
ture time  and  remove  them,  is  a  contract  for  the  sale  of  an  interest 
in  land.  If  it  is,  it  must  follow  that  the  one  declared  on  in  this  case, 
not  being  in  writing,  was  invalid,  and  the  judgment  of  the  common 
pleas,  reversing  that  of  the  justice,  was  correct  and  must  be  affirmed. 


606  STATUTE    OF   FRAUDS  (Ch.  S 

And  in  the  outset  I  must  observe,  that  this  question  has  not,  to 
my  knowledge,  been  decided  in  this  state.  It  has,  however,  arisen 
in  the  EngHsh  courts,  and  in  some  of  those  of  our  sister  states ; 
but  their  decisions  are  contradictory,  and  the  views  of  individual 
judges  wholly  irreconcilable  with  each  other.  Greenl.  Ev.  (2d  Ed.) 
§  271,  and  notes;  Chit,  on  Cont.  299  to  302;  4  Kent's  Com.  (5th 
Ed.)  450,  1.  We  are,  therefore,  as  it  seems  to  me.  at  full  liberty  to 
adopt  a  broad  principle,  if  one  can  be  found,  which  will  determine 
this  precise  question  in  a  manner  which  our  judgments  shall  ap- 
prove, and  especially  if  it  be  equally  applicable  to  other  and  analogous 
cases. 

By  the  statute,  a  contract  for  the  sale  of  "Any  interest  in  lands" 
is  void  unless  in  writing.  The  word  "land"  is  comprehensive  in  its 
import,  and  includes  many  things  besides  the  earth  we  tread  on,  as 
waters,  grass,  stones,  buildings,  fences,  trees  and  the  like;  for  all 
these  may  be  conveyed  by  the  general  designation  of  land.  1  Shep. 
Touch,  by  Preston,  91 ;  1  Inst.  4;  1  Preston  on  Estates,  8;  2  Black. 
Com.  17,  18;  1  R.  S.  387,  §  2;  2  R.  S.  137,  §  6.  Standing  trees  are 
therefore  part  and  parcel  of  the  land  in  which  they  are  rooted,  and 
as  such  are  real  property.  They  pass  to  the  heir  by  descent  as  part 
of  the  inheritance,  and  not,  as  personal  chattels  do,  to  the  executor 
or  administrator.  Toller's  Law  of  Executors,  193,  4,  5;  2  Black. 
Com.  by  Chitty.  122,  note;  Rob.  on  Frauds,  365,  6;  Richard  Li- 
ford's  Case,  11  Rep.  46;  Com.  Dig.  Biens,  (H).  And  being  strictly 
real  property,  they  cannot  be  sold  on  an  execution  against  chattels 
only.  Scorell  v.  Boxall,  1  Younge  &  Jer.  396;  Evans  v.  Roberts, 
5  Barn.  &  Cress.  829. 

It  is  otherwise  with  growing  crops,  as  wheat  and  corn,  the  annual 
produce  of  labor  and  cultivation  of  the  earth;  for  these  are  per- 
sonal chattels,  and  pass  to  those  entitled  to  the  personal  estate,  and 
not  to  the  heir.  Toller,  150,  194;  2  Black.  Com.  404.  They  may 
also  be  sold  on  execution  like  other  personal  chattels.  Whipple  v. 
Foot,  2  Johns.  418,  3  Am.  Dec.  442 ;  Jones  v.  Flint,  10  Adol.  &  El- 
lis, 753 ;  Peacock  v.  Purvis,  2  Brod.  &  Bing.  362 ;  Hartwell  v.  Bis- 
sell,  17  Johns.  128. 

These  principles  suggest  the  proper  distinction.  An  interest  in 
personal  chattels  may  be  created  without  a  deed  or  conveyance  in 
writing,  and  a  contract  for  their  sale  may  be  valid  although  by 
parol.  But  an  interest  in  that  which  is  land,  can  only  be  created 
by  deed  or  written  conveyance:  and  no  contract  for  the  sale  of 
such  an  interest  is  valid  unless  in  writing.  It  is  not  material  and 
does  not  affect  the  principle,  that  the  subject  of  the  sale  will  be  per- 
sonal property  when  transferred  to  the  purchaser.  If,  when  sold, 
it  is,  in  the  hands  of  the  seller,  a  part  of  the  land  itself,  the  contract 
is  within  the  statute.  These  trees  were  part  of  the  defendant's  land 
'and  not  his  personal  chattels.  The  contract  for  their  sale  and  trans- 
fer, being  by  parol,  was  therefore  void. 


Sec.  1)  "contract  for  the  sale  of  goods"  607 

The  opinion  of  the  court  in  the  case  of  Dunne  v.  Ferguson,  1 
Hayes  (Irish)  R.  542,  contains  one  of  the  best  ihustrations  of  this 
question.     That  case  is  thus  stated  in  Stephens'  N.  P.   1971 : 

"The  facts  of  the  case  were,  that  in  October,  1830,  the  defendant 
sold  to  the  plaintiff  a  crop  of  turnips,  which  he  had  sown  a  short 
time  previously,  for  a  sum  less  than  ten  pounds.  In  February,  1831, 
and  previously,  while  the  turnips  were  still  in  the  ground,  the  de- 
fendant severed  and  carried  away  considerable  quantities  of  them, 
which  he  converted  to  his  own  use.  No  note  in  writing  was  made 
of  the  bargain.  It  was  contended  for  the  defendant,  that  the  ac- 
tion of  trover  did  not  lie  for  things  annexed  to  the  freehold,  and 
that  the  contract  was  of  no  vaHdity  for  want  of  a  note  or  memoran- 
dum in  writing  pursuant  to  the  statute  of  frauds.  Upon  the  forego- 
ing facts  Chief  Baron  Joy  observed  (Barons  Smith,  Pennefeather 
and  Foster,  concurring) : 

"The  general  question  for  our  decision  is,  whether  there  has  been 
a  contract  for  an  interest  concerning  lands,  within  the  second  sec- 
tion of  the  statute  of  frauds?  or  whether  it  merely  concerned  goods 
and  chattels?  And  that  question  resolves  itself  into  another,  whether 
or  not  a  growing  crop  is  goods  and  chattels?  In  one  case  it  has  been 
held,  that  a  contract  for  potatoes  did  not  require  a  note  in  writing, 
because  the  potatoes  were  ripe :  and  in  another  case,  the  distinction 
turned  upon  the  hand  that  was  to  dig  them,  so  that  if  dug  by  A.  B. 
they  were  potatoes,  and  if  by  C.  D.  they  were  an  interest  in  lands. 
Such  a  course  always  involves  the  judge  in  perplexity,  and  the  case 
in  obscurity.  Another  criterion  must,  therefore,  be  had  recourse  to ; 
and,  fortunately,  the  later  cases  have  rested  the  matter  on  a  more 
rational  and  solid  foundation.  At  common  law,  growing  crops  were 
uniformly  held  to  be  goods;  and  they  were  subject  to  all  the  leading 
consequences  of  being  goods,  as  seizure  in  execution,  &c.  The  stat- 
ute of  frauds  takes  things  as  it  finds  them,  and  provides  for  lands 
and  goods  according  as  they  were  so  esteemed  before  its  enactment. 
In  this  way  the  question  may  be  satisfactorily  decided.  If,  before 
the  statute,  a  growing  crop  has  been  held  to  be  an  interest  m  lands, 
it  would  come  within  the  second  section  of  the  act,  but  if  it  were 
only  goods  and  chattels,  then  it  came  within  the  thirteenth  section. 
On  this,  the  only  rational  ground,  the  cases  of  Evans  v.  Roberts,  5 
Barn.  &  Cress.  829,  Smith  v.  Surman,  9  Barn.  &  Cress.  561,  and 
Scorell  V.  Boxall,  1  Younge  &  Jer.  396,  have  been  decided.  And  as 
we  think  that  growing  crops  have  all  the  consequences  of  chattels, 
and  are  like  them,  liable  to  be  taken  in  execution,  we  must  rule  the 
points  saved   for  the  plaintiff." 

Various  other  decisions  have  proceeded  on  the  same  principle, 
although  it  has  nowhere  been  stated  and  illustrated  with  the  same 
clearness  and  force  as  in  the  opinion  of  Chief  Baron  Joy. 

The  following  cases  may  be  cited  to  show  that  growing  crops  of 
grain  and  vegetables,  fructus  industriales,  being  goods  and  chattels, 


608  STATUTE    OF   FRAUDS  (Ch.  8 

and  not  real  estate,  may  be  conveyed  by  a  verbal  contract,  as  they 
may  also  be  sold  on  execution  as  personal  chattels.  Carrington  v. 
Roots,  2  Mees.  &  Wels.  248;  Sainsbury  v.  Matthews,  4  Mees.  & 
Wels.  343;  Randall  v.  Ramer,  2  Johns.  421,  note;  Mumford  v. 
Whitney,  15  Wend.  387,  30  Am.  Dec.  60;  Austin  v.  Sawyer,  9  Cow. 
39;  Jones  v.  Flint,  10  Adol.  &  Ellis,  753;  Warwick  v.  Bruce,  2 
Maule  &  Selw.  205 ;  Graves  v.  Weld,  5  Barn.  &  Adol.  105. 

But  where  the  subject  matter  of  a  contract  of  sale,  is  growing 
trees,  fruit  or  grass,  the  natural  produce  of  the  earth,  and  not  an- 
nual productions  raised  by  manurance  and  the  industry  of  man,  as 
they  are  parcel  of  the  land  itself,  and  not  chattels,  the  contract,  in 
order  to  be  valid,  must  be  in  writing.  Teal  v.  Auty,  2  Brod.  &  Bing. 
99;  Putney  v.  Day,  6  N.  Hamp.  R.  430;  Olmstead  v.  Niles,  7  id. 
522;  Crosby  v.  VVadsworth,  6  East,  602;  Rodwell  v.  Phillips,  9 
Mees.  &  Wels.  501 ;   Jones  v.  Flint,  10  Adol.  &  Ellis,  753. 

The  contract  in  this  case  was  within  the  statute,  and  being  by 
parol  was  void.  The  judgment  of  the  common  pleas  must  be  af- 
firmed. 

Judgment   affirmed.® 


LAVERY  V.  PURSELL. 

(Chancery  Division,  ISSS.     39  Cli.  Div.  508.) 

Action  for  the  specific  performance  of  a  contract;  or,  alternative- 
ly, for  damages.  On  November  11,  1886,  at  an  auction  sale,  the 
plaintiff  bought  from  the  defendant  "the  valuable  building  materials 
of  the  spacious  premises  in  Milk  Street,  Cheapside,"  formerly  the 
City  of  London  School,  and  afterwards  the  Constitutional  Club, 
"comprising  the  sound  brick  and  stone  work,  stout  timber,  joists, 
partitions  and  rafters;  flooring  and  joinery;  baths  and  lavatory 
fittings,  cupboards,  lifts,  ranges,  stoves,  gas  and  water  piping; 
stone  staircase,  York  paving  and  real  paving  tiles,  roofing  slates 
and  many  tons  of  lead."  By  the  conditions  of  sale  possession  of 
the  premises  was  to  be  given  to  the  purchaser  "for  the  purpose  only 
of  taking  down  and  removing  materials"  and  the  materials  were 
"to  be  taken  down  and  cleared  off  the  ground"  on  or  before  the 
11th  of  January  next.  The  plaintiff  paid  part  of  the  purchase  price 
and  was  given  possession  under  the  contract.  There  was  a  memo- 
randum of  the  sale,  but  it  w^as  insufficient  because  of  the  absence 
of  a  description  of  the  vendor.' 

ChiTty,  j,  *  *  *  I  now  come  to  the  serious  question  of  law, 
whether   this    contract    falls    within    section   4   of   the    Statute   of 

6As  to  trees  in  a  nurser.v,  see  Miller  v.  Baker,  1  Mete.  (Mass.)  27  (1840) ; 
Whitmarsli  v.  Wallcer,  1  Mete.  (Mass.i  .313  (1S40).  As  to  fruit  on  the  treo 
see  Piirner  v.  Piercy,  40  Md.  212,  17  Am.  Rep.  591  (1874). 

7  The  statement  of  the  case  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  1)  "contract  for  the  sale  of  goods"  609 

Frauds,  as  the  Defendants  contend,  or  within  section  17,  as  the 
Plaintiff  contends.  Now,  unquestionably  section  4  of  the  Statute 
of  Frauds  has  been  often  considered  by  the  Courts,  and  I  do  not 
think  I  am  wrong  in  saying  that,  in  part,  the  section  itself  has 
been  embedded  in  the  decisions.  But  it  is  useful  from  time  to  time 
to  refer  back  to  the  statute ;  and  the  words  of  section  4,  so  far  as 
is  material,  are,  "any  contract  or  sale  of  land,  tenements,  or  heredit- 
aments, or  any  interest  in  or  concerning  them."  Now  the  Legisla- 
ture evidently  thought  in  framing  that  4th  section  that  there  were 
some  contracts  of  so  important  a  nature  that  it  was  not  right  to 
leave  them  to  depend  on  the  slippery  testimony  of  men's  memories, 
and  therefore  that  there  should  be  some  note  or  writing  which 
should  be  preserved  to  authenticate  the  contract;  and  contracts  of 
this  class,  that  is,  of  the  class  as  to  which  I  read  the  words,  are 
within  those  which  in  the  view  of  the  Legislature  required  either 
a  contract  in  writing  signed  by  the  parties  to  it,  or  some  note  or 
memorandum. 

What  is  this  contract?  On  the  one  side  it  is  said  to  be  a  con- 
tract merely  for  the  sale  of  bricks  and  mortar  and  stone  and  build- 
ing materials;  on  the  other  side  that  it  is  the  sale  of  a  standing 
house,  but  a  standing  house  which  is  not  to  be  retained  as  a  stand- 
ing house  by  the  purchaser,  but  one  which,  standing  at  the  time,  is 
to  be  pulled  down.  Quite  apart  from  authority,  it  would  strike  any 
lawyer,  first  of  all,  that  the  house,  which  is  standing  on  the  land, 
is  a  tenement  or  hereditament.  I  see  no  escape  from  it.  This  house 
happens  to  be  a  very  large  and  important  house,  and  it  does  seem 
strange  at  first  sight  that  the  Legislature  should  protect  me  if  I 
sell  my  house  as  a  thing  standing  and  not  to  be  taken  away,  and 
should  require  that  there  should  be  a  note  or  memorandum  of  that 
contract;  but  that  if  I  sell  my  house  which  is  now  standing,  and 
which  is  to  be  pulled  down  over  my  head  by  somebody  else,  that 
that  should  be  considered  a  less  important  contract,  and  that  no 
writing  should  be  required. 

The  thing  sold,  as  it  stands  at  the  moment,  is  a  hereditament.  It 
is  said  that  there  is  no  interest  in  a  hereditament,  but  then  that  is 
answered,  if  I  am  right,  in  saying  that  the  standing  house  is  a  here- 
ditament. Then  it  is  said  that  there  is  no  interest  in  the  soil.  That 
is  true  in  this  sense,  and  in  this  sense  only,  that  there  is  no  perma- 
nent interest.  But  in  this  contract,  and  in  fact  in  every  contract  of 
this  kind,  there  must  be,  and  is  here,  a  right  to  go  in  and  hold  for 
the  purpose  of  pulling  down ;  and  that  again  seems  to  be  an  inter- 
est in  the  hereditament  or  tenement.  I  am  now  speaking  quite 
apart  from  decision.  How  can  this  question  be  answered,  taking 
the  language  of  the  4th  section  except  that  this  is  a  contract  con- 
cerning a  hereditament? 
Wo  ODw.  Sales — 39 


610  STATUTE    OF   FRAUDS  (Ch.  8 

Then  it  is  said  that  there  is  a  distinction,  and  that  the  intention 
of  the  parties  was  to  treat  the  house  as  a  chattel  and  so  bring  it 
within  the  17th  section.  I  can  understand  that,  without  any  dififi- 
culty,  where  the  owner  of  the  house  is  to  pull  his  own  house  down; 
but  I  have  the  greatest  difficulty  in  following  the  argument  where 
the  purchaser  is  to  pull  the  house  down.  Indeed  there  is,  as  it  ap- 
pears to  me,  under  this  contract,  first,  a  contract  concerning  a 
hereditament,  and,  from  the  very  nature  of  the  thing  and  the  time 
which  must  be  occupied  in  pulling  down  these  materials  (from  the 
11th  of  November  to  the  11th  of  January  upon  the  contract,  and 
which  upon  the  evidence  is  about  a  reasonable  time  for  so  doing), 
accompanied,  as  it  seems  to  me,  with  an  interest  in  the  way  of  li- 
cense or  possession,  which  again  brings  it  within  the  scope  of  the 
words  of  the  4th  section.  The  contract  itself  speaks,  as  I  have  al- 
ready said,  in  the  second  clause,  of  possession ;  and  that  is  the  lan- 
guage the  parties  have  used.  Of  course  on  reading  the  whole  con- 
tract, I  might  see  that  it  is  not  possession  simply  in  point  of  law, 
but  something  less ;  but  on  reading  this  contract  I  think  possession 
expresses  what  the  parties  meant — namely,  it  is  to  be  possession,  al- 
though it  is  for  a  limited  purpose:  it  is  possession  for  the  purpose 
of  taking  down  and  removing  the  materials. 

The  vendor  seems  to  consider  himself,  according  to  these  terms, 
to  be  out  of  possession,  because  by  the  12th  condition  he  reserved  a 
right  of  access.  It  is  not  necessary  to  go  very  minutely  into  this 
point,  but  I  think  that  the  contract  does  purport  to  confer  on  the 
purchaser  the  right  to  be  there  for  the  purpose  of  taking  down  and 
removing  the  materials,  and  does  give  him  either  a  complete  or  a 
qualified  possession;  but  still  a  possession  of  the  soil  itself — of  the 
land,  tenements  and  hereditaments ;  certainly  of  the  whole  of  the 
house.  That  being  so,  if  the  question  was  free  from  authority,  I 
should  have  thought  that  this  case  fell  within  the  statute.  Of 
course  I  am  not  forgetting  the  mode  in  which  the  property  is  sold. 
It  is  sold  as  building  materials,  and  if  the  intention  of  the  parties 
prevailed  it  might  mean  that  it  is  sold  as  a  chattel,  but  the  point 
still  is  that  it  is  not  a'chattel  at  the  time  of  the  sale;  and  the  Stat- 
ute of  Frauds,  so  far  as  I  can  see,  does  not  enable  parties  to  say, 
"We  will  agree  to  treat  this  thing  as  a  chattel,"  when  in  point  of 
law  it  is  a  hereditament. 

Now  the  authority  upon  which  the  Plaintiflf  relied  is  Marshall  v. 
Green,  1  C.  P.  D.  35.  In  that  case  the  subject-matter  of  the  con- 
tract was  standing  trees,  fit  to  be  cut  as  timber.  The  intention  oi 
the  parties  unquestionably  was  to  sell  and  buy  as  timber.  There 
was  no  stipulation  there  in  regard  to  possession,  but  it  was  a  part 
of  the  terms  of  the  contract  that  the  purchaser  should  cut,  and  of 
course  part  of  the  terms  of  the  contract  that  he  should  enter  for 
that  purpose.  On  the  facts  it  appeared  that  six  trees  had  been  cut 
down  by  the  defendant,  who  was  sued  for  the  wrongful  acts  of 


Sec.  1)  "contract  for  the  sale  of  goods"  611 

cutting-  down  the  trees.  The  substantial  question  was  whether  the 
defendant  was  a  trespasser  and  wrongdoer  in  cutting  the  trees, 
and  that  depended  upon  whether  he  had  an  enforceable  contract  to 
cut  the  trees.  He  had  cut  six  trees,  and  then  a  notice  was  given 
to  him  by  the  owner  of  the  trees  to  cut  no  more.  After  that  he 
entered  and  still  cut,  and  the  question  was  as  to  his  liability  in  re- 
spect of  those  trees.  Sir  Arthur  Watson  in  arguing  this  case  spoke 
of  a  revocable  license,  but  the  Common  Pleas  Division  appeared  to 
consider  that  this  was  not  a  revocable  license,  because  they  held 
that  he  was  justified  in  cutting  the  trees  notwithstanding  the  notice. 
Then  the  trees  being  standing  trees  to  be  cut  by  the  purchaser,  the 
Court  held  that  it  was  not  within  the  4th  section.  Of  course  I  am 
bound  by  the  decision  itself,  and  I  am  bound  by  any  principle  of 
law  that  is  necessary  to  the  decision,  but  I  am  not  bound  by  the 
decision  beyond  that. 

Now  the  Court  appears  to  have  considered  that  there  was  no 
interest  in  the  land.  I  agree  that  it  was  a  point,  if  I  may  say  so 
with  great  respect,  that  required  a  good  deal  of  attention,  whether 
a  standing  tree  is  a  chattel  or  can  be  made  by  any  acts  of  the  par- 
ties a  chattel.  It  is  a  hereditament  at  the  time  when  the  contract 
is  made.  It  is  just  as  much  a  hereditament  in  point  of  law  as  a 
house  which  is  standing  on  the  land  and  just  as  much  so  as  the 
mines  which  are  underneath.  I  only  speak  now  as  a  real  property 
lawyer.  I  am  bound  of  course  by  the  English  law  to  say  that  a  tree 
is  not  a  chattel.  Indeed  if  a  man  were  indicted  for  larceny  of  a  tree 
the  indictment  would  be  quashed.  I  feel  a  little  difficulty  in  follow- 
ing that  reasoning,  which,  for  the  purposes  of  section  4,  through 
the  intention  of  the  parties,  changes  the  nature  of  the  property 
from  realty  to  personalty,  but  I  make  these  observations  merely 
for  the  purpose  of  endeavouring  to  get  at  the  principle  on  which 
the  decision  turns  and  not  for  the  purpose  of  making  any  unneces- 
sary comments  on  what  was  said. 

The  Lord  Chief  Justice  says,  and  I  thoroughly  agree  with  him, 
that  it  is  difficult,  if  not  impossible,  to  reconcile  all  the  authorities 
in  these  matters.  He  mentions  the  cases  which  referred  to  the 
fructus  naturales  and  the  fructus  industrials,  which  have  no  doubt 
given  rise  to  a  considerable  difference  of  opinion,  and  he  quotes 
the  well-known  passage  in  Williams'  Saunders,  vol.  1,  p.  395  (Dup- 
pa  V.  Mayo),  where  it  was  said  that  where  the  parties  agree  that 
the  thing  sold  shall  be  immediately  withdrawn  from  the  land,  the 
land  is  to  be  considered  as  a  mere  warehouse  of  the  thing  sold, 
the  contract  is  for  goods.  I  pause  for  one  moment  to  say  that  I 
am  always  myself  afraid  in  dealing  with  propositions  of  law  to  use 
metaphors.  They  are  very  often  very  convenient,  but  if  pressed  too 
far  they  often  lead  to  erroneous  conclusions.  Taking  this  state- 
ment, could  the  land  in  the  case  before  me  be  considered  as  the 
warehouse  for  the  building?     Why  certainly  not.     Such  a  conten- 


612  STATUTE    OF   FRAUDS  (Ch.  8 

tion  as  that,  on  the  mere  statement  of  it,  would  be  one  which  could 
not  be  permitted  in  a  Court  of  Justice.  I  say  that  merely  to  fol- 
low the  reasoning,  but  when  the  case  is  examined  as  a  whole  it 
will  be  seen  that  the  judgment  turned  upon  this  that  they  consid- 
ered that  as  the  trees  were  to  be  cut  down  as  soon  as  possible,  and 
were  almost  immediately  cut  down,  the  thing  sold  was  a  chattel. 

A  point  was  taken  with  reference  to  the  statement  by  Lord  Jus- 
tice Brett,  1  C.  P.  D.  42 :  "With  respect  to  the  first  point,  when  the 
subject-matter  of  the  contract  is  something  affixed  to  land,  the 
question  is  whether  the  contract  is  intended  to  be  for  the  purchase 
of  the  thing  affixed  only,  or  of  an  interest  in  the  land  as  well  as 
the  thing  affixed."  I  think  upon  that,  that  the  Lord  Justice  did  not 
intend  to  draw  any  such  distinction  as  to  the  word  commented  on — 
that  the  tree  was  affixed  or  was  a  fixture.  I  can  see  nothing  in  the 
argument  founded  on  that  proposition.  The  true  basis  of  his  judg- 
ment is,  I  think,  to  be  found  in  the  same  page,  where  he  says :  "The 
contract  is  not  for  an  interest  in  the  land,  but  relates  solely  to  the 
thing  sold  itself." 

Though  that  case  may  be  open  hereafter  to  further  consideration, 
of  course  I  cannot  reconsider  it,  nor  can  I  dift'er  from  it.  It  is  evident 
that  if  that  view  is  right,  which  I  will  assume  it  to  be,  a  line  must  be 
drawn  somewhere,  because,  if  this  principle  were  carried  to  the 
full  extent,  there  being  no  distinction  between  the  timber  on  the 
land  in  point  of  law  and  the  mines,  then  it  would  have  to  be  said, 
following  out  what  the  Plaintiff  says  was  the  principle  of  this  de- 
cision, that  a  contract  for  all  the  coal  or  minerals  under  a  man's 
land,  with  a  license  to  enter'  and  get  it,  is  not  within  section  4. 
Some  explanation  why  that  should  be  was  attempted  to  be  given 
by  Plaintift'"s  counsel,  but  without  success.  The  answer  perhaps 
is,  that  Courts  of  Justice  ought  not  to  be  puzzled  by  such  old  scho- 
lastic questions  as  to  where  a  horse's  tail  begins  and  where  it 
ceases.  You  are  obliged  to  say,  "This  is  a  horse's  tail,"  at  some 
time.  What  I  say  is  that  I  must  draw  the  line  at  this  case,  because 
on  the  facts  it  is  quite  dift'erent,  or  materially  different,  from  Mar- 
shall V.  Green,  1  C.  P.  D.  35,  and  I  leave  that  case  as  it  stands  on 
its  own  footing  and  must  hold  that  this  case  comes  within  the  4th 
section.     *     *     *  ® 

8  Compare  Lone:  v.  White,  42  Ohio  St.  59  (18S4).  in  which  an  oral  contract 
to  sell  a  dwelling  house  then  standing  upon  the  premises  of  the  vendor, 
and  which  the  vendor  agreed  to  deliver  "standing  upon  blocks  in  his  yard," 
on  or  before  a  certain  day,  was  held  to  be  a  contract  for  tlie  sale  of  person- 
alty. Said  the  court:  "In  applying  the  statute  of  frauds,  buildings  are  not 
classed  with  forest  trees,  but  with  growing  crops,  nursery  trees,  and  fixtures 
attached  to  realty.  And  buildings  are  realty  or  personalty,  according  to  the 
intention  of  the  parties.  And  wlien  the  parties  in  interest  agree  that  they 
may  be  severed  and  moved  from  the  realty,  buildings  are  held  and  treated  as 
personalty." 

As  to  fixtures,  see  Lee  v.  Gaskell,  1  Q.  B.  D.  700  (1876) ;  South  Baltimore 
Co.  V.  Muhlbach.  69  Md.  395.  16  Atl.  117,  1  L.  R.  A.  507  (ISSS) ;  Moody  v. 
Aiken,  50  Tex.  65  (1S78) ;   Willistou,  Sales,  §  65. 


Stc.  1)  "contract  for  the  sale  of  goods"  613 

HIGGINS  V.  KUSTERER. 

(Supreme  Court  of  Michigan,  1879.     41  Mich.  318,  2  N.  W.  13,  32  Am.  Rep.  160.) 

Campbell,  C.  J.  Higgins  recovered  below  a  judgment  against 
Kusterer  for  the  value  of  a  quantity  of  ite.  Kusterer  claims  that 
title  never  passed  to  Higgins,  and  that  the  property  was  lawfully 
acquired  by  himself  from  one  Loder,  who  cut  it  on  a  pond  belonging 
to  one  Coats  and  sold  it  to  defendant. 

The  facts  are  briefly  these :  The  ice  in  question  was  formed  upon 
water  which  had  spread  over  a  spot  of  low  ground  partly  belonging 
to  Hendrick  Coats,  forming  a  basin,  the  land  being  dry  in  summer, 
and  in  the  rest  of  the  year  overflowed  from  a  small  brook  leading 
into  it.  After  the  ice  formed,  and  in  February,  1878,  Coats,  by  a 
parol  bargain,  sold  all  the  ice  in  his  part  of  the  basin  to  Higgins, 
for  fifty  cents.  The  parties  at  the  time  stood  near  by,  in  view  of 
the  ice,  and  the  quantity  sold  was  pointed  out,  and  the  money  paid. 
The  ice  was  then  all  uncut. 

About  two  wrecks  thereafter  John  Loder,  knowing  that  Higgins 
had  purchased  and  claimed  the  ice,  and  having  been  warned  thereof 
by  Coats,  offered  Coats  five  dollars  for  the  ice,  which  Coats  ac- 
cepted, and  Loder  cut  it  and  sold  it  to  Kusterer,  who  had  made  a 
previous  verbal  contract  with  Loder  for  it.  Higgins  was  present 
when  the  ice  was  loaded  on  Kusterer's  sleigh,  and  forbade  the  load- 
ing and  removal,  on  the  ground  that  he  had  purchased  it  from 
Coats.  Kusterer  referred  the  matter  to  Coats,  who  said  he  had  sold 
it  to  Loder. 

The  only  question  presented  is  whether  Higgins  was  owner  of 
the  ice. 

The  case  was  argued  very  ably  and  very  fully,  and  the  whole 
subject  of  the  nature  of  ice  as  property  was  discussed  in  all  its  bear- 
ings. We  do  not,  however,  propose  to  consider  any  question  not 
arising  in  the  case. 

The  record  is  free  from  any  complications  which  might  arise 
under  other  circumstances.  There  are  no  conflicting  purchasers 
in  good  faith  without  notice.  Loder  and  Kusterer  had  full  notice 
of  the  claims  of  Higgins  before  they  expended  any  money.  The 
sale  to  Higgins  was  not  a  sale  of  such  ice  as  might  from  time  to 
time  be  formed  on  the  pond,  but  of  ice  which  was  there  already,  and 
which  if  not  cut  would  disappear  with  the  coming  of  mild  weather 
and  have  no  further  existence.  It  was  not  like  crops  or  fruit  con- 
nected with  the  soil  by  roots  or  trees,  through  which  they  gained 
nourishment  before  maturity.  It  was  only  the  product  of  running 
water,  a  portion  of  which  became  fixed  by  freezing,  and  if  not  re- 
moved in  that  condition  would  lose  its  identity  by  melting.  In 
its  frozen  condition  it  drew  nothing  from  the  land,  and  got  no  more 
support  from  it  than  a  log  floating  on  the  water  would  have  had. 


014  STATUTE    OF   FRAUDS  (Ch.  8 

Its  only  value  consists  in  its  disposable  quality  as  capable  of 
removal  from  the  water  while  solid,  and  of  storage  where  it  might 
be  kept  in  its  solid  state,  which  could  not  be  preserved  without  such 
removal.    If  left  where  it  was  formed  it  would  disappear  entirely. 

While  we  think  there  can  be  no  doubt  that  the  original  title  to 
ice  must  be  in  the  possessor  of  the  water  where  it  is  formed,  and 
while  it  would  pass  with  that  possession,  yet  it  seems  absurd  to 
hold  that  a  product  which  can  have  no  use  or  value  except  as  it  is 
taken  away  from  the  water,  and  which  may  at  any  time  be  removed 
from  the  freehold  by  the  moving  of  the  water,  or  lose  existence 
entirely  by  melting,  should  be  classed  as  realty  instead  of  personalty, 
when  the  owner  of  the  freehold  chooses  to  sell  it  by  itself.  When 
once  severed  no  skill  can  join  it  again  to  the  realty.  It  has  no  more 
organic  connection  with  the  estate  than  anything  else  has  that  floats 
upon  the  water.  Any  breakage  may  sweep  it  down  the  stream  and 
thus  cut  oflf  the  property  of  the  freeholder.  It  has  less  permanence 
than  any  crop  that  is  raised  upon  the  land,  and  its  detention  in  any 
particular  spot  is  liable  to  be  broken  by  many  accidents.  It  must 
be  gathered  while  fixed  in  place,  or  not  at  all,  and  can  only  be  kept 
in  existence  b}-  cold  weather.  In  the  present  case  the  peculiar  situa- 
tion of  the  pond  rendered  it  likely  that  the  ice  could  not  float  away 
until  nearly  destroyed,  but  it  could  not  be  preserved  from  the  other 
risks  and  incidents  of  its  precarious  existence.  Any  storm  or  shock 
might  in  a  moment  convert  it  into  floating  masses  which  no  inge- 
nuity of  black-letter  metaphysics  could  annex  to  the  freehold. 

It  does  not  seem  to  us  that  it  would  be  profitable  to  attempt  to 
determine  such  a  case  as  the  present  by  applying  the  inconsistent 
and  sometimes  almost  whimsical  rules  that  have  been  devised  con- 
cerning the  legal  character  of  crops  and  emblements.  Ice  has  not 
been  much  dealt  with  as  property  until  very  modern  times,  and  no 
settled  body  of  legal  rules  has  been  agreed  upon  concerning  it.  So 
far  as  the  principles  of  the  common  law  go,  they  usually,  if  not  uni- 
versally, treated  nothing  movable  as  realty  unless  either  permanent- 
ly or  organically  connected  with  the  land.  The  tendency  of  modern 
authority,  especially  in  regard  to  fixtures,  has  been  to  treat  such 
property  according  to  its  purposes  and  uses,  as  far  as  possible. 

The  ephemeral  character  of  ice  renders  it  incapable  of  any  per- 
manent or  beneficial  use  as  part  of  the  soil,  and  it  is  only  valuable 
when  removed  from  its  original  place.  Its  connection,  if  its  posi- 
tion in  the  water  can  be  called  a  connection,  is  neither  organic  nor 
lasting.  Its  removal  or  disappearance  can  take  nothing  from  the 
land.  It  can  onl\-  be  used  and  sold  as  personalty,  and  its  only  use 
tends  to  its  immediate  destruction.  We  think  that  it  should  be 
dealt  with  in  law  according  to  its  uses  in  fact,  and  that  any  sale  of 
ice  ready  formed,  as  a  distinct  commodity,  should  be  held  a  sale 
of  personalty,  whether  in  the  water  or  out  of  the  water. 


Sec.  1)  "contract  for  the  sale  of  goods"  615 

We  shall  not  attempt  to  discuss  cases  where  the  bargain  includes 
future  uses  of  land  and  water,  and  interests  in  ice  not  yet  frozen. 
Whether  such  dealings  are  to  be  regarded  as  leases,  or  licenses, 
or  executor)'^  sales,  may  be  properly  discussed  when  they  occur. 
We  think  the  sale  in  the  present  case  was  rightly  held  to  be  a  sale 
of  personalty. 

The  judgment  must  be  affirmed,  with  costs.  The  other  Justices 
concurred.' 


GREENWOOD  v.  LAW. 

(Court  of  Errors  and  Appeals  of  New  Jersey.  Is93.     .5-5  X.  J.   Law.  168.  26 
Atl.  134.  19  Lf.  R.  A.  6sS.) 

Van  Syckel,  J.  Law,  the  plaintiff  below,  gave  to  Greenwood,  the 
defendant,  a  mortgage  upon  lands  in  this  state  for  the  sum  of  $3,700. 
Law  alleged  that  Greenwood  entered  into  a  parol  agreement  with  him 
to  assign  him  this  mortgage  for  the  sum  of  83,000,  and  brought  this 
suit  to  recover  damages  for  the  refusal  of  Greenwood  to  execute  said 
parol  agreement.  On  the  trial  below  a  motion  was  made  to  nonsuit  the 
plaintiff  on  the  ground  that  the  alleged  agreement  was  within  the  stat- 
ute of  frauds.  The  refusal  of  the  trial  court  to  grant  this  motion  is 
assigned  for  error. 

Lord  Chief  Justice  Denman,  in  Humble  v.  Mitchell,  reported  in  11 
Adol.  &  E.  205,  and  decided  in  1840,  said  that  no  case  directly  in  point 
on  this  subject  has  been  found,  and  he  held  that  shares  in  an  incor- 
porated company  were  not  goods,  wares,  and  merchandise,  within  the 
seventeenth  section  of  the  statute  of  frauds.  He  overlooked  the  cases 
of  Alussell  V.  Cooke,  reported  in  Finch,  Free.  533,  (decided  in  1720,) 
and  Crull  v.  Dodson,  reported  in  2  Eq.  Cas.  Abr.  51,  c.  28,  Sel.  Cas. 
Ch.  41,  (decided  in  1725,)  in  which  the  contrary  view  was  taken.  In 
the  case  of  Pickering  v.  Appleby,  Comyn,  354,  this  question  was  fully 
argued  before  the  12  judges,  who  were  equally  divided  upon  it.  The 
cases  decided  in  the  English  courts  since  1840  have  followed  Humble 
V.  Mitchell.  They  will  be  found  collected  in  Benj.  Sales  (Ed.  1888,) 
in  a  note  on  page  106. 

In  this  country  a  different  rule  prevails  in  most  of  the  states.  In 
Baldwin  v.  Williams,  3  Mete.  (Mass.)  365.  a  parol  contract  for  the  sale 
of  a  promissor}-  note  was  held  to  be  within  the  statute.  In  Connecti- 
cut and  ]Maine  a  contract  for  the  sale  of  shares  in  a  joint-stock  com- 
pany is  required  to  be  in  writing.     Xorth  v.  Forest,   15  Conn.  400; 

9  Compare  State  v.  Pottmever.  33  Ind.  402.  5  Am.  Rep.  224  (ISTOt.  in  which 
the  court  .said:  "If  water  in  a  pool  upon  one's  land  be  part  of  the  realty, 
because  fixed  and  stationary,  why  is  it  not.  when  congealed  over  the  bed  of 
the  stream,  to  the  thread  of  which  his  title  extends?  True,  nature  wiU  in 
time,  if  it  be  not  removed,  again  change  the  ice  to  fluid,  and  it  will  pass 
away  from  possession ;  but  not  more  certainly  than  the  changing  winds  and 
the  rising  tide  wiU  sweep  away  the  shifting  sands." 


616  STATUTE    OF   FRAUDS  (Ch.  S 

Pray  v.  Mitchell,  60  Me.  430.  Chief  Justice  Shaw,  after  a  full  discus- 
sion of  the  subject  in  Tisdale  v.  Harris,  20  Pick.  (]\Iass.)  9,  concludes 
that  a  contract  for  the  sale  of  shares  in  a  manufacturing  corporation 
is  a  contract  for  the  sale  of  goods  or  merchandise  within  the  statute 
of  frauds,  and,  in  the  absence  of  the  other  requisites  of  the  statute, 
must  be  proved  by  some  note  or  memorandum  in  writing,  signed  by 
the  party  to  be  charged  or  his  agent.  He  did  not  regard  the  argiiment 
that  by  necessary  implication  the  statute  applies  only  to  goods  of  which 
part  may  be  delivered  as  worthy  of  much  consideration.  An  animal 
is  not  susceptible  of  part  delivery,  yet  undoubtedly  the  sale  of  a  horse 
by  parol  is  within  the  statute.  The  exception  in  the  statute  is  when 
part  is  delivered ;  but,  if  there  cannot  be  a  delivery  in  part,  the  excep- 
tion cannot  exist  to  take  the  case  out  of  the  general  prohibition. 

Bonds  and  mortgages  were  expressly  held  to  be  goods  and  chattels 
in  Terhune  v.  Bray's  Ex'rs,  16  N.  J.  Law,  53.  That  was  an  action 
of  trover  for  a  bond  and  mortgage.  Chief  Justice  Hornblower,  in  de- 
ciding the  case,  said  that,  although  the  attachment  act  and  letters  of 
administration  seem  to  distinguish  between  rights  and  credits  and 
goods  and  chattels,  and  although  an  execution  against  the  latter  will 
not  reach  bonds  and  notes,  yet  there  is  a  sense  in  which,  upon  sound 
legal  principles,  such  securities  are  goods  and  chattels.  This  sense 
ought  to  be  applied  to  these  words  in  this  case.  Reason  and  sound 
policy  require  that  contracts  in  respect  to  securities  for  money  should 
be  subject  to  the  reasonable  restrictions  provided  by  the  statute  to  pre- 
vent frauds  in  the  sale  of  other  personal  property.  The  words,  "goods, 
wares,  and  inerchandise,"  in  the  sixth  section  of  the  statute,  are  equiv- 
alent to  the  term  "personal  property,"  and  are  intended  to  include 
whatever  is  not  embraced  by  the  phrase  "lands,  tenements,  and  heredit- 
aments" in  the  preceding  section. 

In  my  judgment,  the  contract  sued  upon  is  within  the  statute  of 
frauds,  and  it  was  error  in.  the  court  below  to  refuse  to  nonsuit.^" 


SECTION  2.— "FOR  THE  PRICE  OF  £10  OR  UPWARDS' 


HARMAN  v.  REEVE. 

(Court  of  Common  Pleas,  1856.     25  I^w  J.  C.  P.  257.) 

The  declaration  stated  that,  on  the  28th  of  June  1855,  in  considera- 
tion that  the  plaintiff  bargained  with  the  defendant  to  sell,  and  then 
sold  to  him,  a  certain  mare  and  foal,  and  that  the  plaintiff  would,  at 

10  In  Walker  v.  Supple,  54  Ga.  178  (1875),  and  French  v.  Schoonmaker,  69 
N.  J.  Law,  6,  54  Atl.  225  (1903),  a  sale  of  a  simple  contract  debt  was  held 
to  be  within  the  statute.  But  compare  Somerby  v.  Buutin,  118  Mass.  279, 
19  Am.  Rep.  459  (1875). 


Sec.  2)  "for  the  pkice  of  £10  or  upwards"  617 

his  own  expense  keep  and  feed  the  said  mare  and  foal  for  a  certain 
tnne,  to  wit,  until  Michaelmas  then  next  ensuing;  and  that  the 
plaintiff  would,  at  his  own  expense,  maintain,  feed,  and  keep  a  certain 
other  mare  and  foal  belonging-  to  the  defendant  for  and  during  the 
period  of  six  weeks,  the  defendant  agreed  to  purchase  from  the  plain- 
tiff the  mare  and  foal  first  mentioned,  and  to  fetch  the  same  away 
from  the  plaintiff's  at  Michaelmas  aforesaid,  and  pay  to  the  plaintiff 
the  sum  of  i30.  Averment  of  performance  by  the  plaintiff  of  all 
things  on  his  part  to  be  performed ;  and  that  all  things  had  happened 
to  entitle  the  plaintiff  to  have  the  contract  performed  on  the  defend- 
ant's part.  Breach,  that  the  defendant  did  not  nor  would  fetch  away 
the  mare  and  foal  so  agreed  to  be  purchased  and  fetched  away,  or 
either  of  them,  or  pay  to  the  plaintiff  the  said  sum  of  £30.  Special 
damage. 

Plea  denying  the  contract. 

The  cause  was  tried,  before  Jervis,  C.  J.,  at  the  last  Spring  Assizes 
for  Norfolk,  when  the  plaintiff  having  proved  his  case  as  stated  in  the 
declaration,  it  was  objected,  on  behalf  of  the  defendant,  that  the  con- 
tract was  not  in  writing,  as  required  by  the  17th  section  of  the  Statute 
of  Frauds ;  whereupon  his  Lordship  nonsuited  the  plaintiff,  and  re- 
served leave  to  him  to  move  to  enter  a  verdict  for  £30. 

Je;rvis,  C.  J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
It  is  now  well  settled  that  the  7th  section  of  Lord  Tenterden's  Act,  9 
Geo.  IV,  c.  14,  and  the  17th  section  of  the  Statute  of  Frauds  are  to  be 
read  together,  and  the  enactments  of  the  latter  statute  are  extended  to 
all  contracts  for  the  sale  of  goods  of  the  value  of  ilO.  and  upwards. 
The  effect  of  that  is  to  substitute  the  word  "value"  for  the  word 
"price"  in  the  17th  section  of  the  Statute  of  Frauds,  so  as  to  adopt 
one  uniform  rule  in  all  cases,  and  the  17th  section  must  now  be  read, 
"no  contract  for  the  sale  of  any  goods,  &c.  of  the  value  of  ilO.  or  up- 
wards, shall  be  allowed  to  be  good,  except  the  buyer  shall  accept  part 
of  the  goods  so  sold  and  actually  receive  the  same,  or  give  something 
in  earnest  to  bind  the  bargain  or  in  part  payment,  or  that  some  note 
or  memorandum  in  writing  of  the  said  bargain  be  made,"  &c.  Now, 
the  present  is  the  case  of  a  contract  for  the  sale  of  goods  above  the 
value  of  ilO.,  for  there  is  no  doubt  that  the  plaintiff's  mare  and  foal 
were  worth  more  than  ilO. ;  and  although  that  may  not  very  distinctly 
appear  upon  the  face  of  the  contract,  still  it  might  and  would  have  been 
shown  by  parol  evidence.  Then,  it  is  a  contract  for  the  sale  of  the 
plaintiff's  mare  and  foal  above  the  value  of  £10. ;  and  it  is  not  the 
less  so  because  something  else  is  included  in  it,  and  there  is  no  note  or 
memorandum  in  writing.  Prima  facie,  therefore,  the  case  is  within 
the  statute,  the  principal  subject-matter  of  the  contract  being  the  sale 
of  the  plaintiff's  mare  and  foal  to  the  defendant,  the  rest  being  merely 
ancillary  to  it ;  but  even  if  this  be  not  so,  it  is  still  a  contract  for  the 
sale  of  goods  above  the  value  of  £10.,  and,  as  such,  I  think  cannot  be 
enforced. 


018  STATUTE    OF   FRAUDS  (Ch.  8 

But  then  it  is  argued  that  there  has  been  an  acceptance,  which  takes 
the  case  out  of  the  statute.  I  think  not,  for  there  has  been  no  accept- 
ance of  the  "goods  so  sold" — that  is,  of  the  plaintiff's  mare  and  foal 
~but  the  defendant  has  had  the  enjoyment  of  something  else  engrafted 
upon  the  contract,  and  that  does  not  satisfy  the  statute.  And  there 
is  no  hardship  in  our  so  deciding,  for  the  plaintiff  is  still  at  liberty 
to  recover  for  the  price  of  the  agistment  of  the  defendant's  mare  and 
foal.  The  answer  given  to  this  suggestion  by  Mr.  Couch  is,  that  the 
plaintiff  would  not  have  contracted  for  the  agistment  of  the  defendant's 
mare  and  foal,  unless  the  whole  contract  had  been  entered  into,  and 
that  it  is  unfair  that  he  should  recover  for  part  only.  But  that  is  a 
sort  of  thing  that  occurs  daily.  I  agree  to  let  a  house  to  a  man  for 
a  term  of  years,  and  he  enters  under  the  promise  of  a  lease  and  oc- 
cupies for  a  year,  when  I  sue  him  for  use  and  occupation.  It  would 
be  no  answer  for  him  to  say,  "I  should  not  have  entered  at  all,  unless 
you  had  agreed  to  grant  me  a  lease."  If  entitled  to  a  lease,  it  is  his 
own  fault  if  he  does  not  get  it ;  and  it  is  no  reason  because,  by  his  own 
fault,  he  has  failed  to  get  all  he  was  entitled  to,  that  he  should  not 
pay  for  what  he  has  had. 

In  this  case  the  plaintiff  may  recover  for  the  agistment  of  the  de- 
fendant's mare  and  foal  when  he  properly  sues  for  it;  but  he  cannot 
recover  the  price  of  his  own  mare  and  foal.  "It  by  no  means  follows," 
as  said  by  Bayley  B.,  "because  you  cannot  sustain  a  contract  in  the 
whole,  you  cannot  sustain  it  in  part,  provided  your  declaration  be 
so  framed  as  to  meet  the  proof  of  that  part  of  the  contract  which  is 
good." 

Rule  discharged.^^ 


WEEKS  V.  CRIE  et  al. 

(Supreme  Judicial  Court  of  Maiue.  1900.    94  Me.  458,  48  Atl.   107,  SO  Am. 

St.  Rep.  410.) 

Assumpsit  to  recover  damages  for  nondelivery  of  a  quantity  of  fish, 
which  the  plaintiff  alleged  he  purchased  of  the  defendants  under  an  oral 
contract.  The  defendants  denied  the  contract,  and  invoked  the  stat- 
ute of  frauds.^^ 

Savage;,  J.  At  the  trial  of  this  case  the  plaintiff  claimed,  and  in- 
troduced evidence  tending  to  show,  that  the  defendants  in  November, 
1898,  orally  agreed  to  sell  him  from  three  to  five  hundred  drums  of 
hake  at  $1.65  per  kentle,  to  be  delivered  at  Rockland  when  called 
for  by  him,  and  at  the  same  interview  agreed  to  sell  him  ten  barrels 
of  split  herring  at  $4.25  per  barrel,  to  be  delivered  in  Rockland  by 

11  Concurring  opinions  were  delivered  by  Williams  and  Crowder.  JJ. 

12  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  2)  "for  the  price  of  £lo  or  upwards"  619 

next  boat  from  Criehaven,  which  would  be  within  one  week;  that  he 
(the  plaintiff)  orally  agreed  with  the  defendants  to  purchase  the  hake 
and  the  herring  upon  these  terms.  It  was  admitted  by  the  defendants 
that  they  sold  the  herring  to  the  plaintiff  as  claimed,  and  that  they 
were  delivered  according  to  the  agreement,  and  paid  for  by  the  plain- 
tiff. The  plaintiff  in  January,  1899,  demanded  300  drums  of  hake 
to  be  delivered  in  accordance  with  the  alleged  agreement,  but  the 
defendants  refused  to  deliver  them;  and  to  recover  damages  for  that 
alleged  breach  of  contract  this  action  was  brought. 

The  defendants  denied  that  they  agreed  to  sell  any  hake  to  the 
plaintiff.  But  the  jury,  under  instructions  to  which  no  exceptions  were 
taken,  have  found  they  did  make  such  a  contract.  In  this  contingency 
the  defendants  claim  that,  if  any  such  contract  of  sale  was  made,  it 
was  oral  merely,  and,  being  for  more  than  $30,  it  was  invalid  under 
the  statute  of  frauds.  The  case  shows  that  no  memorandum  was  made, 
and  nothing  was  given  in  earnest  to  bind  the  bargain ;  and  the  de- 
fendants claim  that  no  part  of  the  goods  sold  were  accepted  and  re- 
ceived by  the  purchaser,  so  as  to  bind  the  defendants  to  deliver  the 
hake.     *     *     * 

The  plaintiff,  however,  contends  that  the  contracts  for  the  hake 
and  the  herring  constituted  in  fact  but  one  entire  contract  for  hake  and 
herring,  and  that  his  acceptance  and  receipt  of  the  herring,  a  part  of 
the  merchandise  contracted  for,  took  the  sale  out  of  the  statute  as  to 
the  whole.  The  defendants  admit  the  "delivery"  of  the  herring,  and 
we  understand  from  that  admission  that  they  also  admit  that  the  her- 
ring were  accepted  and  received  by  the  plaintiff.  The  phrase  "deliv- 
ered by  the  seller"  is  frequently  used  in  such  cases  in  the  sense  of  "ac- 
cepted and  received  by  the  purchaser,"  and  not  unnaturally,  for  a  re- 
ceipt by  the  purchaser  necessarily  presupposes  a  delivery  by  the  seller. 
This  is  not  entirely  accurate,  however,  for  the  statute  makes  acceptance 
and  receipt  by  the  purchaser  the  test  of  the  removal  of  the  statutory 
bar. 

Now,  if  there  were  two  separate  contracts  of  sale,  one  for  the  her- 
ring and  one  for  the  hake,  it  is  clear  that  the  acceptance  and  receipt  of 
the  herring  did  not  take  the  contract  for  the  hake  out  of  the  statute,  for 
an  acceptance  under  one  contract  cannot  make  another  contract  valid. 
But  if  there  was  in  fact  only  one  contract,  for  both  herring  and  hake, 
negotiated  for,  it  may  be,  successively,  a  delivery  followed  by  an 
acceptance  and  receipt  of  the  herring  did  take  the  hake  out  of  the  stat- 
ute. It  is  unquestionably  the  law  in  such  case  that  an  acceptance  and 
receipt  of  part  of  the  articles  purchased,  or  of  all  of  one  class  of 
articles  purchased,  necessarily  takes  the  whole  contract  out  of  the  stat- 
ute. Elliott  V.  Thomas,  3  Mees.  &  W.  170.  So  that,  if  the  contract 
in  this  case  was  single  and  entire,  it  was  proper  for  the  presiding  jus- 
tice to  rule  that  the  delivery  of  the  herring  took  the  hake  out  of  the 


620  STATUTE    OF   FRAUDS  (Cll.  8 

Statute.  For,  although  the  question  whether  there  is  an  acceptance 
and  receipt  under  the  contract  is  ordinarily  for  the  jury,  yet  in  this 
case  the  admission  that  the  herring  was  so  accepted  carried  with  it, 
necessarily,  the  contract  as  to  the  hake,  provided  only  that  it  was  a 
single  contract.  There  was  nothing  left  on  this  point  for  the  jury 
to  decide. 

But  this  conclusion  follows  only  upon  the  assumption  that  there 
was  but  a  single  contract.  The  application  of  the  statute  of  frauds 
in  case  of  the  purchase  of  a  number  of  articles  at  the  same  transaction 
may  depend  upon  whether  there  is  one  contract  or  more.  The  mere 
fact  that  a  separate  price  is  agreed  upon  for  each  article,  or  even  that 
each  article  is  laid  aside  as  purchased,  makes  no  difference,  so  long  as 
the  different  purchases  are  so  connected  in  time  or  place,  or  in  the 
conduct  of  the  parties,  that  the  whole  may  be  fairly  considered  as  one 
transaction.  Browne,  St.  Frauds,  §  314;.Baldey  v.  Parker,  2  Barn.  & 
C.  Z7 ;  Scott  V.  Railway  Co.,  12  Mees.  &  W.  33.  Such  is  the  common 
case  of  a  number  of  articles  purchased  at  private  sale  of  a  shopman, 
for  instance,  at  the  same  time,  though  at  separate  prices.  Browne,  St. 
Frauds,  §§  335,  336.  The  same  doctrine  was  applied  in  a  case  where 
the  parties  made  bargains  for  the  purchase  and  sale  of  several  lots  of 
timber  at  different  places,  some  miles  apart ;  the  bargains  being  made 
at  the  different  places  and  at  separate  prices,  but  all  on  the  same  day. 
Biggs  v.  Whisking,  14  C.  B.  195.  Such  purchases  may  be  regarded  as 
entire,  though  composed  of  separate  parts. 

But  whether  such  negotiations  for  separate  articles  result  in  one 
entire  contract  for  the  whole,  or  whether  the  contract  for  each  remains 
separate  and  distinct,  may  depend  upon  many  circumstances.  It  raises 
a  question  of  fact  properly  to  be  passed  upon  by  a  jury.  Were  the 
transactions  near  in  time  or  place  or  similar  in  circumstances?  What 
was  the  conduct  of  the  parties?  Was  the  seller  a  merchant  engaged  in 
the  regular  course  of  his  business  in  his  shop  or  store?  What  was 
the  language  used?  What  are  the  proper  inferences  to  be  drawn  as 
to  the  intention  of  the  parties?  The  answers  to  these  and  other  like 
questions  solve  the  problem.  If  the  circumstances  are  such  as  to  lead 
to  a  reasonable  supposition  that  the  parties  intended  that  the  whole 
series  of  transactions  should  constitute  one  trade,  they  may  be  re- 
garded as  one  entire  contract;    otherwise,  not. 

Now,  in  the  case  at  bar,  the  jury  were  instructed,  in  effect,  that,  if 
the  two  contracts  for  sale  were  made  at  the  same  interview,  that  would 
be  sufficient.  We  think  this  ruling  was  erroneous.  Even  if  there 
were  no  other  facts  or  circumstances  to  be  considered,  which  is  hardly 
supposable,  it  cannot  be  said,  as  a  matter  of  law,  that  the  mere  fact 
that  the  negotiations  for  the  herring  and  the  hake  were  made  at  the 
same  interview  resulted  in  a  single  contract.  They  may  have  consti- 
tuted one  contract  only,  and  they  may  not.  If  not,  then  the  hake  w^ere 
not  taken  out  of  the  statute  by  the  acceptance  of  the  herring.    Whether 


Sec.  3)  "shall  be  allowed  to  be  good"  621 

the  negotiations  constituted  one  contract  or  more  was  a  question  of 
fact,  and  should  have  been  submitted  to  the  jury. 
Exceptions  sustained.^^ 


SECTION  3.— "SHALL  BE  ALLOWED  TO  BE  GOOD' 


MAHAN  V.  UNITED  STATES. 

(Supreme  Court  of  United  States,  1872.     16  Wall.  14.3,  21  L.  Ed.  307.) 

Appeal  from  the  Court  of  Claims ;  the  case  as  found  by  that  court, 
from  the  evidence,  being  thus : 

One  Mitchell,  of  Mississippi,  being  indebted  to  his  step-daughter, 
of  whose  estate  he  had  been  the  guardian,  mortgaged,  with  his  wife 
(the  mother  of  the  step-daughter  mentioned),  a  life  estate  which  the 
wife  had  in  a  valuable  cotton  farm  in  Mississippi,  near  the  river  of 
that  name;  and  soon  afterwards  died.  Mrs.  Mitchell,  his  widow, 
became  administratrix  of  his  estate.  In  1861  the  rebellion  broke  out. 
There  were  at  this  time  one  hundred  and  sixteen  bales  of  cotton  on 
the  farm ;  and  the  war  being  flagrant  in  Mississippi,  the  Confederate 
general  ordered  all  cotton  near  the  river,  under  penalty  of  being 
burnt,  to  be  removed  from  it,  in  order  to  prevent  its  capture  by  the 
forces  of  the  United  States. 

In  compliance  with  this  order,  Mrs.  Mitchell  removed  the  cotton  to 
Kingston,  near  Natchez,  where  it  was  stacked  and  covered.  "After 
the  cotton  had  been  thus  removed  to  Kingston,  but  before  the  capture 
of  Natchez  by  the  United  States  forces,  and  before  the  passage  of  the 
Abandoned  and  Captured  Property  Act,  a  parol  agreement  was  made 
between  Mrs.  Mitchell  and  her  daughter,  now  like  herself  a  widow, 
to  the  effect  that  the  latter  should  take  the  cotton  as  a  payment  upon 
the  mortgage  before  described.  The  price  was  fixed  at  twenty  cents 
per  pound,  but  the  number  of  pounds  was  not  definitely  ascertained, 
neither  was  any  payment  indorsed  upon  the  mortgage,  nor  any  receipt 
given,  nor  any  memorandum  in  writing  made,  nor  any  present  con- 
sideration paid.  Neither  did  any  change  of  possession  take  place,  nor 
was  there  any  delivery,  actual  or  symbolic.  The  cotton  remained  at 
Kingston  until  its  seizure  by  the  military  forces  of  the  United  States, 
immediately  upon  which  the  daughter  asserted  that  she  was  the  owner, 
and  sought  to  procure  its  release." 

13 As  to  successive  sales  of  several  articles  or  lots  to  one  purchaser  by  auc- 
tion, compare  Emmerson  v.  Heelis,  2  Taunt.  38  (1809),  and  Jenness  v 
Wendell,  51  N.  H.  63,  12  Am.  Rep.  48  (1871). 


622  STATUTE    OF   FRAUDS  (Ch.  8 

Not  succeeding  in  this,  and  the  cotton  being  sold,  and  the  Captured 
and  Abandoned  Property  Act  being  passed,  which  allowed  loyal  own- 
ers of  property  captured  in  the  South  and  so  disposed  of,  to  apply  to 
the  Court  of  Claims  for  the  proceeds,  the  daughter  (now  re-married 
to  one  j\Iahan)  filed  with  her  husband  a  petition  in  the  court  just 
named,  to  have  the  money  which,  on  sale  of  it,  the  cotton  had  brought. 
The  Court  of  Claims  said : 

"The  party  relies  upon  a  purchase  and  sale  at  which,  so  far  as  the 
evidence  shows,  she  paid  no  money,  relinquished  no  rights,  released 
no  debt,  assumed  no  responsibility,  and  acquired  no  possession.  The 
intent  of  the  parties  was  not  evidenced  by  the  payment  of  the  pur- 
chase-money, nor  by  the  ascertainment  of  the  price,  nor  by  a  receipt 
upon  the  mortgage,  nor  by  a  written  memorandum  between  the  par- 
ties, nor  by  any  formal  or  decisive  declaration  before  witnesses,  nor 
by  the  delivery  of  the  thing  sold.  The  facts  do  not,  in  law,  establish  a 
sale  and  delivery,  and  the  evidence  to  prove  the  ownership  of  the 
captured  property  fails." 

The  court  accordingly  dismissed  the  petition,  and  from  that  dis- 
missal this  appeal  came. 

Mr.  Justice  Miller.  The  sole  question  in  the  case  is,  whether  the 
appellant  was  the  owner  of  the  cotton  at  the  time  of  its  seizure  by 
the  agents  of  the  United  States,  and  this  must  be  decided  as  a  matter 
of  law  on  the  finding  of  facts  made  by  the  Court  of  Claims,  notwith- 
standing the  frequent  reference  by  the  counsel  of  the  appellant  to  the 
view  which  he  takes  of  the  evidence  given  in  that  court. 

It  is  strongly  urged  by  the  counsel  that,  by  the  common  law,  the  facts 
as  found  by  the  court,  constituted  a  valid  sale  of  the  property,  and 
that,  as  there  was  no  statute  of  frauds  in  force  in  the  State  of  Missis- 
sippi requiring  delivery  or  a  written  memorandum  to  make  a  sale  of 
personal  property  valid,  the  parol  agreement  set  out  in  this  finding 
constituted  a  valid  sale.  Whether  this  would  be  so  in  the  absence  of 
such  a  statute  as  most  of  the  States  have  on  that  subject,  might  admit 
of  serious  debate. 

But,  while  there  is  no  such  provision  in  the  authorized  publication 
of  the  statutes  of  Alississippi  of  1840  by  Howard  and  Hutchinson,  to 
which  we  have  been  referred,  we  find  in  the  Revised  Code  of  Missis- 
sippi of  1857,  which,  from  our  own  researches,  we  are  bound  to  be- 
lieve was  the  law  in  force  when  this  agreement  was  made,  a  very 
stringent  provision  on  this  subject  in  the  statute  of  frauds  and  per- 
juries of  that  code. 

Article  4  of  chapter  44  (page  359)  enacts  that  no  contract  for  the 
sale  of  any  slaves,  personal  property,  goods,  wares,  and  merchandise 
for  the  price  of  fifty  dollars  or  upwards  shall  be  allowed  to  be  good 
and  valid,  except  the  buyer  shall  receive  the  slaves,  or  part  of  the 
personal  property,  goods,  wares,  and  merchandise,  or  shall  actually 
pay  or  secure  the  purchase-money,  or  part  thereof,  or  unless  some 


Sec.  3)  "shall  be  allowed  to  be  good"  G23 

note  or  memorandum  in  writing  of  the  bargain  be  made  and  signed 
by  the  party  to  be  charged  by  such  contract  or  his  agent  thereunto 
lawfully  authorized. 

The  finding  of  the  Court  of  Claims  negatives  in  the  most  express 
terms  the  existence  in  the  agreement,  by  which  the  title  of  the  cotton 
was  supposed  to  be  transferred,  of  each  and  every  one  of  the  acts  or 
conditions,  some  one  of  which  is  by  that  statute  made  necessary  to  the 
validity  of  the  contract. 

To  hold  that  an  agreement  which  that  statute  declares  shall  not  be 
allowed  to  be  good  and  valid  was  sufficient  to  transfer  the  title  of  the 
property  to  the  claimant,  would  be  to  overrule  the  uniform  construc- 
tion of  this  or  a  similar  clause  in  all  statutes  of  frauds  by  all  the 
courts  which  have  construed  them. 

The  Court  of  Claims  held  that  the  agreement  passed  no  title,  and 
we  concur  in  their  conclusion  on  that  subject. 

It  is  unnecessary  to  examine  into  the  effect  of  the  transaction  as  a 
gift  inter  vivos.  The  finding  that  there  was  no  delivery  would  be  as 
fatal  to  such  a  gift  as  to  the  agreement  of  sale.  Besides  there  is  noth- 
ing in  the  petition  of  the  plaintiff,  or  in  the  findings  of  the  Court  of 
Claims,  on  which  such  a  gift  could  be  considered  as  in  the  issue.  The 
finding  that  it  was  a  parol  contract  of  sale  is  directly  opposed  to  the 
idea  of  a  gift. 

Decree  affirmed.^* 

14  Compare  Brigs^s  v.  United  States,  143  U.  S.  346.  12  Sup.  Ct.  391,  36  L. 
Ed.  180  (1892). 

In  Waite  v.  McKelvy,  71  Minn.  167,  73  N.  W.  727  (189S),  wliich  was  an 
action  to  recover  possession  of  a  carload  of  wlient  and  oilier  grain,  formerly 
the  property  of  the  plaintiff's  son,  but  sold  to  the  plaintiff,  as  she  claimed, 
before  it  was  levied  upon  by  the  defendant,  as  sheriff,  by  virtue  of  a  writ 
of  attachment  issued  against  the  son,  the  court  said  "that  the  rule,  relied 
on  by  the  plaintiff,  to  the  effect  that  the  defense  of  the  statute  of  frauds 
is  personal  to  the  parties  to  the  verbal  contract,  and  cannot  be  invoked  by 
third  parties,  has  no  application  to  this  case,  for  the  defendant,  as  sheriff, 
has,  by  virtue  of  his  levy,  all  of  the  title  and  right  to  the  property  that  the 
seller  had,  if  any,  at  the  time  the  levy  was  made.  If  the  verbal  contract 
had  not  been  so  far  performed  as  to  satisfy  the  statute,  the  verbal  contract 
was.  in  the  language  of  our  statute,  void,  and  no  title  passed  to  the  buyer 
as  against  the  sheriff.  To  permit  the  parties  to  the  verbal  contract,  after 
the  levy,  to  waive  the  statute  would  encourage  perjuries,  and,  as  was  said 
in  Ely  v.  Ormsby,  12  Barb.  (N.  T.)  570,  'open  wide  the  doors  for  frauds,  and 
be  a  very  convenient  method  of  enabling  a  party  to  put  off  his  creditors.' 
This  proposition  is  supported  by  the  commanding  w^eight  of  authority. 
The  adjudged  cases  on  the  question  are  collected  and  analyzed  in  Browne, 
St.  Frauds  (5th  Ed.)  pp.  173-178.  The  author,  however,  while  admitting 
that  the  rule  that  where  there  has  been  no  satisfaction  of  the  statute  up  to 
the  time  when  the  right  or  liability  of  a  third  party  accrues,  the  verbal 
contract  cannot  be  enforced,  is  strongly  sustained  by  authority,  questions 
it  on  principle,  on  the  ground  'that  the  statute  does  not  make  the  contract 
void,  but  only  allows  a  defense  to  its  enforcement,  which  defense  is  personal 
to  the  defendant,  and  may  be  waived  by  him.'  It  is  to  be  noted,  in  this  con- 
nection, that  the  original  statute,  and  that  of  several  of  the  states,  unlike 
our  own,  do  not  declare  the  verbal  contract  void,  but  provide  'that  no  such 
contract  shall  be  allowed  to  be  good'  except  the  statute  is  satisfied.  Order 
reversed,  and  a  new  trial  granted." 


624  STATUTE    OF   FRAUDS  (Ch.  8 

AMSINCK  et  al.  v.  AMERICAN  INS.  CO. 

SAME  V.  BOYLSTON  MUT.  INS.  CO. 

SAME  V.  NEW  ENGLAND  MUT.  INS.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  ISSO.     129  Mass.  1S5.) 

Three  actions  of  contract  upon  policies  of  marine  insurance.  At 
the  trial  in  this  court,  before  Morton,  J.,  the  jury  returned  a  verdict 
for  the  plaintiffs ;  the  case  was  reported  for  the  consideration  of  the 
full  court,  and  appears  in  the  opinion. 

ExDicoTT,  J.'^^  Upon  the  facts  reported,  the  court  is  of  opinion 
that  Machado  had  an  insurable  interest  in  the  vessel  at  the  time  the 
policies  attached,  even  if  we  assume  that  they  took  effect  on  July  5, 
1876,  the  day  of  their  date.  On  that  day,  the  plaintiffs,  as  agents  for 
Machado,  made  an  oral  agreement  in  New  York  with  the  owners  of 
the  vessel  for  her  purchase  for  the  sum  of  $11,000,  payable  on  de- 
livery of  a  proper  bill  of  sale;  and,  having  previously  ascertained 
that  the  defendants  would  insure  her,  they  gave  directions  to  have 
the  insurance  closed.  The  policies  were  written  on  that  day ;  the 
precise  time  of  their  delivery  does  not  appear.  The  oral  contract  to 
purchase  was  reduced  to  writing  and  signed  by  the  plaintiffs  and  the 
owners  on  July  7;  and  a  portion  of  the  purchase  money  was  paid 
on  that  day.  Possession  was  taken  by  Machado,  the  balance  due  was 
paid,  and  a  bill  of  sale  was  duly  executed  to  a  third  person  in  trust 
for  Machado,  who  was  a  foreigner. 

It  is  conceded  by  the  defendants  that  ^Machado  was  the  only  person 
whose  interest  was  insured,  as  appears  by  the  declarations  and  the 
policies.  But  they  contend  that  he  had  no  insurable  interest  on  July 
5,  for  at  that  time  he  had  only  an  oral  contract  for  the  purchase  of 
the  vessel ;  and  that  such  a  contract,  being  within  the  statute  of 
frauds,  and  incapable  of  being  enforced,  gives  no  insurable  interest. 

But  the  oral  contract  to  purchase  was  not  void  or  illegal  by  reason 
of  the  statute  of  frauds.  Indeed,  the  statute  presupposes  an  exist- 
ing lawful  contract;  it  affects  the  remedy  only  as  between  the  par- 
ties, and  not  the  validity  of  the  contract  itself  ;  and  where  the  con- 
tract has  actually  been  performed,  even  as  between  the  parties  them- 
selves, it  stands  unaffected  by  the  statute.  It  is  therefore  to  be  "treat- 
ed as  a  valid  subsisting  contract  when  it  comes  in  question  between 
other  parties  for  purposes  other  than  a  recovery  upon  it."  Townsend 
V.  Hargraves,  118  iSIass.  325,  336:  Cahill  v.  Bigelow,  18  Pick.  369; 
Beal  V.  Brown,  13  Allen,  114;  Norton  v.  Simonds,  124  I\Iass.  19. 
See,  also,  Stone  v.  Dennison,  13  Pick.  1,  23  Am.  Dec.  654.  Machado 
had  under  his  oral  agreement  an  interest  in  the  vessel,  and  would 
have  suffered  a  loss  by  her  injury  or  destruction.     Eastern  Railroad 

15  Part  of  the  opiuiou  is  omitted. 


Sec  3)  "shall  be  allowed  to  be  good"  625 

V.  Relief  Ins.  Co.,  98  Mass.  420.  This  interest  he  could  have  as- 
signed for  a  valuable  consideration,  and,  if  he  had  assigned  it,  all  the 
rights  afterwards  perfected  in  him  would  have  enured  to  the  benefit 
of  his  assignee.  Norton  v.  Simonds,  ubi  supra.  The  case  of  Stock- 
dale  V.  Dunlop,  6  M.  &  W.  224,  relied  upon  by  the  defendants,  does 
not  sustain  their  position,  for  reasons  which  are  stated  in  Townsend 
V.  Hargraves,  supra.  *  *  * 
Verdicts  set  aside. 


JACKSON  et  al.  v.  STANFIELD  et  al. 
(Supreme  Court  of  Indiana,  1S94.     137  Ind.  592,  37  N.  E.  14,  23  L.  R.  A.  5SS.) 

An  action  for  wrongfully  preventing  the  plaintiff  Newton  Jack- 
son from  performing  a  contract  to  sell  a  certain  quantity  of  lumber 
to   the   Studebaker   Bros.    Manufacturing   Company. 

DailDy,  J.  ^^  *  *  *  If  is  urged  that  the  contract  between  the 
Studebaker  Bros.  Manufacturing  Company  and  appellant  Newton 
Jackson  is  void  under  the  statute  of  frauds,  because  the  value  of 
the  lumber  was  over  $50,  and  the  finding  does  not  show  that  the  of- 
fer was  accepted  in  writing.  If  this  be  true,  it  is  no  concern  of  the 
appellees.  Parties  to  contracts  and  their  privies  can  alone  take  ad- 
vantage of  the  fact  that  a  contract  is  invalid  under  the  statute  of 
frauds.  Many  forms  of  expression  by  this  and  other  courts  illus- 
trate the  doctrine  that  a  third  person  cannot  make  the  statute  of 
frauds  available  to  overthrow  a  transaction  between  other  persons ; 
that  the  defense  of  this  statute  is  purely  a  personal  one,  and  can- 
not be  made  by  strangers.  Burrow  v.  Railroad  Co.,  107  Ind.  432, 
8  N.  E.  167 ;  Bodkin  v.  Merit,  102  Ind.  293,  1  N.  E.  625 ;  Cool  v. 
Peters  Box,  etc.,  Co.,  87  Ind.  531;  Dixon  v.  Duke,  85  Ind.  434; 
Wright  V.  Jones,  105  Ind.  17,  4  N.  E.  281 ;  Savage  v.  Lee,  101  Ind. 
515;  8  Am.  &  Eng.  Enc.  Law,  659,  and  cases  cited.  It  concerns 
the  remedy  alone,  and  the  modern  law  is  well  settled  that,  in  the 
absence  of  a  statutory  provision  to  the  contrary,  the  effect  of  the 
statute  is  not  to  render  the  agreement  void,  but  simply  to  prevent 
its  direct  enforcement  by  the  parties,  and  to  refuse  damages  for  its 
breach,    8  Am.  &  Eng.  Enc.  Law,  658,  659,  and  cases  cited.     *     *     * 


TAYLOR   v.    GREAT   EASTERN   RY.   CO. 

(Court  of  Appeal,  Queen's  Bench  Division.     [1901]  1  K.  B.  Div.  774.) 

Trial  in  the  Commercial  Court  before  Bigham,  J. 
On  October    19,    1900,   a   firm   of    Barnard   Brothers   sold   to   one 
Sanders  a  quantity  of  barley  at  the  price  of  i68.  5s.  on  rail  at  El- 


18  Part  of  the  opinion  is  omitted. 
WooDW.  Sales — 40 


Ol'O  STATUTE    OF   FRAUDS  (Ch.  8 

senham  Station  on  the  defendants'  railway.  Messrs.  Barnard  gave 
to  Sanders  an  invoice  containing  the  terms  of  the  contract  in  the 
following  form:  "Newport,  Essex.  October  19,  1900.  Mr.  George 
Sanders.  Bought  of  Barnard  Brothers.  Per  on  rail  at  Elsenham 
to  your  order,  52  Qrs.  4  bus.  barley  at  26s.,  68  lbs.  5s."  There  was 
no  memorandum  in  writing  of  the  contract  signed  by  Sanders.  On 
October  24  Messrs.  Barnard  gave  a  written  order  to  the  defendants 
directing  them  to  transfer  the  barley  to  Sanders :  and  thereupon  the 
defendants  sent  to  Sanders  an  advice-note  informing  him  that  the 
barley  was  at  the  station  awaiting  his  order.  After  receiving  this 
advice-note  Sanders  tried  to  resell  the  barley,  using  for  the  pur- 
pose a  sample  obtained  from  Barnard  Brothers,  but  he  did  not  suc- 
ceed in  finding  a  purchaser.  He  never  inspected  or  sampled  the 
bulk  at  the  railway  station.  Towards  the  end  of  November  Sanders 
committed  an  act  of  bankruptcy  on  which  he  was  subsequently  ad- 
judicated, and  the  plaintiff  was  appointed  trustee.  On  or  about  No- 
vember 30  Messrs.  Barnard,  as  unpaid  vendors,  claimed  to  stop  the 
goods  in  transitu,  and  demanded  the  barley  from  the  defendants. 
who  gave  it  up  to  them.  The  plaintiff  then  sued  the  defendants  for 
conversion. 

BiGHAM,  J.  In  this  case  one  of  the  defences  ^^  relied  upon  by  the 
defendants  was  that  although  Barnard  Brothers  had  signed  a  suffi- 
cient memorandum  of  the  contract  of  sale  within  the  meaning  of 
section  4  of  the  Sale  of  Goods  Act,  Sanders  had  not ;  and  it  was  said 
that  he  had  neither  paid  any  part  of  the  price  (which  was  true)  nor 
accepted  any  part  of  the  goods.  In  these  circumstances  it  was  ar- 
gued, as  I  understand,  that  the  property  in  the  goods  had  not  passed 
from  Barnards  to  Sanders,  and  that,  therefore,  Barnards  were  en- 
titled to  possession.  I  may  say  at  once  that  this  contention,  what- 
ever it  may  be  w^orth  in  law,  is  not  well  founded  in  fact.  I  am  of 
opinion  that  the  goods  had  been  accepted  by  Sanders.  He  had  cer- 
tainly received  them,  though,  of  course,  receipt  does  not  necessarily 
involve  acceptance.  But  after  receiving  them  he  had  obtained  a 
sample,  not,  it  is  true,  by  drawing  it  from  the  bulk  at  the  station, 
but  by  asking  the  vendors  to  let  him  have  a  sample  which  was  in 
their  possession.  By  means  of  this  sample  he  had  tried  to  sell  the 
goods.     He  had,  moreover,  kept  them   for  a  month. 

These  circumstances,  in  my  opinion,  amount  to  an  acceptance. 
The  words  in  section  17  (now  repealed)  of  the  Statute  of  Frauds 
were,  "except  the  buyer  shall  accept  part  of  the  goods  so  sold  and 
actually  receive  the  same."  Many  cases  are  to  be  found  in  the  re- 
ports dealing  w'ith  the  meaning  of  these  words,  but  it  is  unnecessary 
to  examine  them :    their  effect  is  to  be  found  sufficiently  and,  in  my 

1  "Another  question  which  was  argued  was  whether  the  transitus  of  tlie 
goods  was  not  at  an  end.  But  as  the  decision  on  the  point  turned  entirely 
upon  a  question  of  fact,  that  portion  of  the  judgment  has  been  omitted  from 
this  report. 


Sec.  3)  "shall  be  allowed  to  be  good"  627 

opinion,  accurately  stated  on  pages  149,  150  of  the  3d  edition  of 
Mr.  Chalmers'  book  on  the  Sale  of  Goods  Act,  and  that  new  Act 
contains  what  the  Statute  of  Frauds  did  not  contain — a  definition 
of  the  word  "acceptance"  in  this  connection.  Section  4,  subsec.  3, 
provides  that  "there  is  an  acceptance  of  goods  within  the  meaning 
of  this  section  when  the  buyer  does  any  act  in  relation  to  the  goods 
which  recognises  a  pre-existing  contract  of  sale,  whether  there  be 
an  acceptance  in  performance  of  the  contract  or  not."  Now,  I  think 
there  could  not  be  a  clearer  act  recognising  a  pre-existing  contract 
of  sale  than  the  attempt  by  Sanders  to  resell.  If  he  had  in  fact  re- 
sold, would  that  not  have  been  sufficient?  And  if  an  actual  sale, 
then  why  not  also  an  attempt  to  sell  ?  Can  any  one  suppose  that 
Sanders  could  have  successfully  resisted  an  action   for  the  price? 

The  defendants  referred  to  and  relied  on  a  decision  under  the 
old  Act  in  1892:  Taylor  v.  Smith  (1893)  2  Q.  B.  65.  That  case 
was  dealt  with  by  the  Court  as  merely  involving  a  question  of  fact. 
This  appears  from  an  examination  of  the  judgments.  I  see  by  a 
foot-note  that  the  case  was  reported  about  a  year  after  it  was  de- 
cided "in  deference  to  representations  from  various  quarters."  I 
think  the  editor  would  have  done  well  to  have  resisted  those  rep- 
resentations, for  the  case  declares  no  principle  of  law  and  is,  in  my 
opinion,  of  no  general  application.  It  was  held  there  that  the  buyer 
did  not  by  looking  at  the  goods  at  the  wharfingers,  and  by  saying  "I 
reject  them,"  in  fact  accept  them.  For  my  part  I  agree;  but  it  by 
no  means  follows  that  I  think  in  the  present  case  that  the  buyer  did 
not  accept  the  goods.  I  think  he  did;  and  I  think,  therefore,  that, 
though  there  was  no  memorandum  in  writing  signed  by  Sanders,  the 
provisions  of  the  statute  were  sufficiently  complied  with  to  make  the 
contract  of  sale  binding  upon  him. 

The  view  which  I  take  of  the  facts  makes  it  unnecessary  to  con- 
sider the  point  of  law,  but  I  should  like  to  say  a  word  or  two  about 
it  and  about  the  case  of  Nicholson  v.  Bower,  1  E.  &  E.  172,  which 
was  cited  by  Mr.  Lush  in  support  of  it.  I  think  that  the  absence  of 
a  memorandum  in  writing,  and  of  the  other  conditions  mentioned  in 
section  4,  subsec.  1,  of  the  Sale  of  Goods  Act,  does  not  make  a  con- 
tract void  or  even  voidable.  The  contract  is  good.  The  only  effect 
of  the  non-fulfilment  of  the  statutory  conditions  is  that  it  is  unen- 
forceable. And,  the  contract  being  good,  all  the  legal  consequences 
of  a  contract  follow ;  so  that,  if  the  contract  is  for  the  sale  of  specific 
goods,  the  property  in  the  goods  passes  to  the  buyer.  It  may  be 
asked,  What  happens  if  the  buyer,  after  making  the  purchase,  refuses 
to  fulfill  any  of  the  statutory  conditions  which  alone  will  make  the 
contract  enforceable  against  him?  The  property  in  the  goods  has 
passed  to  him,  and  it  may  be  that  he  has  received  the  goods  them- 
selves, yet  he  cannot  be  sued  for  the  price.  My  answer  is  that  the 
seller  may  call  on  the  buyer  to  pay  for  the  goods,  and,  if  he  fails  to 
comply,  the  seller  may  treat  the  contract  as  rescinded.     The  effect 


628  STATUTE    OF   FRAUDS  (Ch.  8 

of  such  rescission  would  be  to  revest  the  property  in  the  seller  and 
to  entitle  him  to  resume  possession. 

As  to  the  case  of  Nicholson  v.  Bower,  1  E.  &  E.  172,  it  was  an 
issue  to  try  whether  certain  wheat  was  the  property  of  the  plaintiff, 
who  was  the  assignee  of  one  Pavitt,  a  bankrupt,  or  the  property  of 
the  defendant  who  had  sold  the  wheat  to  Pavitt.  Pavitt  had  not 
complied  with  the  requirements  of  the  statute,  so  that  the  contract 
of  sale  never  was  enforceable  against  him,  and  it  seems  to  have  been 
decided  that  on  this  ground  there  was  no  binding  contract  between 
the  vendor  and  the  vendee,  and  that,  therefore,  the  property  never 
legally  vested  in  the  buyer.  If  that  is  the  true  ground  of  the  de- 
cision, I  do  not  think  it  was  right,  nor  do  I  think  it  is  in  accordance 
with  the  later  cases  decided  under  the  statute.  The  seller  had  sold 
the  goods  and  was  clearly  bound  by  the  contract,  and  the  buyer  had 
bought  the  goods  although  he  could  not  be  sued  for  the  price  if  he 
chose  to  insist  on  the  statutory  defence.  In  such  circumstances  it 
would  not  be  true  to  say  that  the  property  had  not  passed.  I  think, 
however,  upon  a  careful  examination  of  the  facts  of  the  case,  the 
decision  may  be  justified  on  the  supposition  that  before  the  assignee's 
title  could  be  said  to  have  arisen  the  vendor  and  the  vendee  had  re- 
scinded the  contract  so  that  the  property  had  revested  in  the  former ; 
and  this  appears  to  have  been  the  ground  upon  which  the  judgment 
of  Erie,  J.,  proceeded.     There  must  be  judgment  for  the  plaintiff. 

Judgment  for  the  plaintiff'. 


SHELTON  et  al.  v.  THOMPSON  et  al. 
(Court  of  Appeals  at  Kansas  City,  Mo.,  1902.     96  Mo.  App.  327.  70  S.  W.  250.) 

Broaddus,  J.  This  suit  originated  in  a  justice's  court,  where  trial 
was  had,  appeal  taken  to  the  circuit  court  of  the  county,  where  on 
trial  anew  the  plaintiff  recovered  judgment,  which  the  court  on  mo- 
tion for  a  new  trial  set  aside,  from  which  action  of  the  court  in 
setting  said  verdict  aside  the  plaintiff's  appealed.  The  action  is 
replevin  to  obtain  the  possession  of  15  hogs,  of  which  it  is  alleged 
the  plaintiffs  were  the  owners,  and  which  the  defendants  unlawfully 
w'ithheld.  It  appears  that  the  parties  to  the  suit  are  stock-shipping 
firms  doing  business  at  Spickards,  Grundy  county,  'Mo. ;  that  on 
September  2,  1901,  J.  N.  Sires,  acting  for  plaintiff's,  went  to  the  farm 
of  one  Richard  Bain,  some  distance  from  said  town,  and  contract- 
ed with  said  Bain,  the  owner,  in  behalf  of  plaintiffs,  for  said  hogs, 
at  the  price  of  $5,371/1.  per  hundredweight,  said  Bain  agreeing  to 
deliver  them  on  September  14th  next,  at  the  stock  yards  of  the  Rock 
Island  Railroad  in  said  town  of  Spickards.  At  the  time  of  the  said 
agreement  these  particular  hogs  were  selected  by  Sires  and  Bain 
from  other  hogs  of  Bain  which  were  in  the  same  pen.  There  was 
no  writing  signed  by  the  parties,  and  no  money  paid.     On  said 


Sec.  3)  "shall  be  allowed  to  be  good"  629 

Wednesday  said  Bain  placed  the  hogs  in  said  stock  yards.  At 
about  8  o'clock  a.  m.,  after  the  hogs  had  been  put  in  the  pens,  Sires 
appeared,  and  wanted  Bain  to  have  the  hogs  weighed.  But  it  was 
shown  that  Bain  was  not  willing  to  weigh  the  hogs  to  plaintiff  be- 
cause Sires  had  not  come  sooner  for  that  purpose,  he  (Bain)  claim- 
ing that  they  had  shrunk  in  the  meantime,  and  that  to  meet  this 
shrinkage  the  plaintiffs  should  pay  him  a  larger  price  per  hundred. 
This  Sires,  one  of  the  plaintiffs,  refused  to  do.  It  appears  that  de- 
fendants' purchasing  agent  had  offered  Bain  10  cents  more  per 
hundred  than  the  agreed  price  aforesaid;  and  when  Bain  asked 
Sires  to  pay  this  additional  price,  which  had  been  oft"ered  by  Grif- 
fin, who  was  defendants'  purchasing  agent,  he  (Sires),  according  to 
Bain's  evidence,  "just  turned  around,  and  says,  'you  sell  them  to 
him.'  "  Bain  did  sell  to  Griffin  for  defendants,  the  hogs,  whereupon 
the  plaintiffs,  on  the  5th  of  said  month,  instituted  these  proceed- 
ings. 

One  contention  of  the  defendants  is  that,  as  there  was  no  writing 
evidencing  the  agreement  between  Bain  and  the  plaintiff's,  signed  by 
the  parties,  and  no  money  paid,  the  value  of  the  animals  in  dispute 
being  over  $30,  the  plaintiffs  were  not  entitled  to  recover.  If  the  acts 
of  the  parties  constituted  a  sale  at  law,  the  transaction  was  not  void, 
but  only  voidable  at  the  election  of  the  party  to  be  charged.  Ault- 
man  v.  Booth,  95  Mo.  386,  8  S.  W.  742;  Maybee  v.  Moore,  90  Mo. 
343,  2  S.  W.  471.  "And  it  may  also  be  said  that,  as  the  statute  of 
frauds  aft'ects  only  the  remedy  of  the  party  sought  to  be  charged, 
its  benefits  cannot  be  claimed  by  one  who  is  not  a  party  to  the  con- 
tract, and  is  not  sought  to  be  charged  thereby."  Railway  Co.  v. 
Clark,  121  Mo.  169,  25  S.  W.  192,  906,  26  L.  R.  A.  751.  But  we  hold 
that  the  defendants  are  not  within  the  above  rule  for  the  reason 
that  their  vendor.  Bain,  voided  the  contract  in  the  first  instance 
by  refusing  to  let  plaintiff's  have  the  hogs  in  dispute.  It  would  be 
illogical  to  hold  that,  after  a  vendor  had  repudiated  an  oral  contract 
like  the  one  in  question,  he  could  not  thereafter  sell  the  goods  and 
give  good  title;  that  is  to  say,  that  thereafter  he  must  keep  the 
goods  because  a  purchaser  could  not  be  found,  for  the  reason  that 
they  could  be  taken  from  him  by  the  original  vendee,  which  would 
destroy  their  character  as  articles  of  merchandise.  But  it  is  plain 
that  when  the  vendor  voids  a  sale  under  said  statute,  and  retains  the 
goods,  his  title  is  as  if  no  such  sale  had  ever  been  made,  and  he  can 
resell  and  give  as  good  a  title  as  his  own  to  the  purchaser,  who 
can,  at  a  suit  by  the  first  vendee  for  the  same  goods,  plead  the  ac- 
tion of  the  vendor  as  a  bar  to  such  suit. 

But  as  these  proceedings  were  instituted  in  the  justice's  court, 
the  defendants  were  not  required  to  state  their  defense  in  writing. 
The  record  fails  to  state  the  substance  of  any  oral  plea  made  by  de- 
fendants, but  we  are  enabled  to  gather  that  they  relied  upon  the 
fact  that  they  were  the  owners  of  the  property  in  controversy  by 


630  STATUTE    OF   FRAUDS  (Ch.  8 

reason  of  their  purchase  from  Bain,  and  that  plaintiffs  got  no  title 
under  their  said  contract  with  him  because  it  was  not  reduced  to 
writing,  no  money  paid,  and  no  delivery  of  the  hogs.  Plaintififs 
contend  that  defendants  could  not  avail  themselves  of  the  statute 
of  frauds  unless  it  was  pleaded  as  a  defense.  This  would  be  true  if 
the  plaintiffs  themselves  had  pleaded  a  contract,  but  this  they  did 
not  and  were  not  required  to  do,  and  it  follows,  therefore,  that  de- 
fendants were  not  required  to  set  up  the  statute  of  frauds  to  an  un- 
pleaded  contract.  Under  a  denial  of  plaintiffs'  title  it  was  per- 
missible for  them  to  show  that  the  contract  under  which  plaintiffs 
sought  to  recover  was  voidable  under  the  statute  of  frauds,  and 
that  such  contract  had  been  repudiated  and  rendered  nugatory  by 
the  action  of  their  vendor.  Bain,  as  has  been  already  said. 

But  it  is  contended  by  plaintiffs  that,  independent  of  all  these 
questions,  there  was  an  actual  delivery  of  the  goods.  It  is  conceded 
that  a  contract  was  made  between  Bain  and  plaintiff  in  reference 
to  the  hogs,  and  their  identity  ascertained.  The  only  point  to  de- 
termine, then,  is,  "was  there  a  delivery"?  If  there  was  a  delivery, 
the  statute  of  frauds  has  nothing  to  do  with  the  case,  and  the  plain- 
tiffs were  entitled  to  recover.  Browne,  St.  Frauds,  §  317,  reads: 
''Where  by  the  terms  of  the  contract  the  sale  is  to  be  for  cash,  or 
any  other  condition  precedent  to  the  buyer's  acquiring  title  to  the 
goods  be  imposed,  or  the  goods  be,  at  the  time  of  the  alleged  re- 
ceipt, not  fitted  for  delivery  according  to  the  contract,  or  anything 
remains  to  be  done  by  the  seller  to  perfect  the  delivery,  such  fact 
will  be  generally  conclusive  that  there  was  no  receipt  by  the  buyer. 
There  must  be  first  a  delivery  by  the  seller,  with  intent  to  give  pos- 
session of  the  goods  to  the  buyer."  Property  of  the  character  in 
dispute  was  capable  of  the  actual  transfer  of  the  possession  from 
the  buyer  to  the  seller. 

It  is  contended  by  plaintiffs  that,  as  the  contract  provided  that 
the  hogs  should  be  delivered  at  the  stock  pens  of  the  Rock  Island 
Railroad  at  Spickards,  the  fact  that  Bain  took  and  put  them  in  said 
pens  constituted  delivery.  A  similar  contention  was  made  in  Har- 
vey V.  Association,  39  Mo.  212.  The  facts  in  that  case  were:  "The 
price  [per  head]  and  the  number  of  cattle  were  agreed  upon,  and 
they  were  to  be  driven  by  the  plaintiff  to  Dresden,  a  station  on  the 
Pacific  Railroad,  and  delivered  into  the  cattle  pens  at  that  place  on 
the  last  of  September,  and  they  were  driven  by  plaintiffs'  agent  to 
Dresden,  and  put  into  the  stock  pens  on  that  day,  but  there  was 
nobody  there  to  receive  them  on  behalf  of  the  defendants,  and  they 
were  driven  away  again  to  a  herding  place  by  the  same  agent." 
The  court  held  that  there  was  no  delivery,  no  actual  change  of  pos- 
session ;  that  "a  delivery  of  possession  necessarily  implies  a  change 
of  dominion  and  control  over  the  property."  Here  the  hogs  were 
delivered  at  the  stock  yards  as  agreed,  but  there  was  no  one  there 


Sec.  3)  "shall  be  allowed  to  be  good"  631 

at  the  time  to  weigh  and  receive  them,  and  when  one  of  the  plain- 
tiffs came  to  receive  them  the  vendor  refused  to  deliver  them  to 
him.  Bain  never  parted  with  his  possession  of  the  hogs,  but  held 
control  of  and  dominion  over  them  until  he  sold  and  delivered  them 
to  the  defendants. 

Under  the  undisputed  facts  in  the  case  the  plaintiffs  were  not  en- 
titled to  recover,  and  the  court  was  fully  justified  in  setting  the 
verdict  aside  on  grounds  1  and  11  mentioned  in  defendants'  motion 
for  a  new  trial. 

Cause  affirmed.    All  concur. 


GREEN  et  al.  v.  LEWIS. 

(Court  of  Queen's  Bench  of  Upper  Canada,  1867.     26  U.  C.  Q.  B.  618.) 

Action  for  non-delivery  of  a  quantity  of  oil.  By  agreement  the 
plaintiff  took  a  verdict  for  $300  damages,  subject  to  the  opinion  of 
the  Court,  who  might,  at  the  plaintiff's  election,  order  either  a  non- 
suit or  a  verdict  for  the  defendant.^^ 

HaGarTy,  J.  *  ■"  *  If  the  defendant's  contention  that  no  valid 
contract  exists  be  right,  we  could  easily  dispose  of  the  case.  He 
relies  on  the  17th  Section  of  the  Statute  of  Frauds.  The  plaintiffs 
answer  this  by  proof  that  by  the  law  of  Illinois  the  "lex  loci  con- 
tractus," no  writing  is  required.  As  is  alleged,  the  defendant 
through  his  agent  made  a  contract  in  Illinois  at  Chicago,  to  sell  to 
the  plaintiffs,  who  resided  there  a  quantity  of  oil,  to  be  delivered 
by  the  defendant,  a  resident  of  Toronto,  at  Toronto  to  the  Grand 
Trunk  Railway  Company,  to  be  carried  by  them  to  Chicago,  the 
price  payable  in  Toronto. 

By  Canadian  law  such  a  contract  must  be  evidenced  by  writing. 
The  bought  note  produced  at  the  trial,  made  by  the  broker,  was 
shown  to  have  been  really  made  in  January,  1866,  after  this  action 
was  commenced,  and  therefore  insufficient.  Bill  v.  Bament,  9  M. 
&  W.  36,  cited  by  Willes,  J.,  in  Williams  v.  Wheeler,  8  C.  B.  N.  S. 
313,  and  again  in  Gibson  v.  Holland,  L.  R.  1  C.  P.  1. 

The  question  chiefly  argued  before  us  was  which  law  was  to 
govern,  our  own  or  that  of  Illinois. 

In  the  Peninsular  and  Oriental  Steam  Co.  v.  Shand,  12  L.  T.  Rep. 
N.  S.  809,  in  the  Privy  Council,  Lord  Justice  Turner,  after  noticing 
the  conflict  of  authority,  says,  in  delivering  the  judgment  of  the 
Court :  '"The  general  rule  is,  that  the  law  of  a  country  where  the 
contract  is  made  governs  as  to  the  nature,  the  obligation  and  inter- 
pretation of  it.     The  parties  to  a  contract  are  either  the  subjects 

18  The  statement  of  the  case  is  sub.-uituted.  The  facts  sufficiently  appear  in 
the  opinion.     Part  of  the  opinion  is  omitted. 


632  STATUTE    OF   FRAUDS  (Ch.  8 

of  the  power  there  ruling,  or  as  temporary  residents  owe  it  a  tem- 
porary allegiance;  in  either  case  equally  they  must  be  understood 
to  submit  to  the  law  there  prevailing,  and  to  agree  to  its  action  upon 
their  contract.  It  is,  of  course,  immaterial  that  such  agreement  is 
not  expressed  in  terms ;  it  is  equalh'  an  agreement  in  fact,  pre- 
sumed de  jure,  and  a  foreign  Court  interpreting  or  enforcing  it 
on  any  contrary  rule  defeats  the  intention  of  the  parties,  as  well 
as  neglects  to  observe  the  recognized  comity  of  nations." 

The  contract  there  was  to  carry  goods  made  in  England,  (with 
a  clause  exempting  the  carrier  from  liability  in  certain  cases)  thence 
to  the  Mauritius;  and  the  judgment  of  the  Privy  Council  held  that 
the  contract  as  made  in  England  was  to  govern,  not  the  law  of 
the  place  of  delivery,  by  which  latter  law  the  carrier  could  not  have 
been  so  protected. 

In  the  much  discussed  case  of  Leroux  v.  Brown,  12  C.  B.  801,  it 
was  held,  in  substance,  that  there  is  a  distinction  between  the  4th 
Section  of  the  Statute,  which  enacts  that  no  action  shall  be  brought 
upon  any  agreement  which  is  not  to  be  performed  within  a  year, 
unless  in  writing,  &c.,  and  the  17th  section,  which  declares  that  no 
contract  for  the  sale  of  goods  for  £10.  or  upwards  shall  be  allowed 
to  be  good,  &c. :  that  the  4th  section  applies  not  to  the  validity 
(or,  as  it  is  called,  the  "solemnities")  of  the  contract,  but  only  to 
the  procedure;  and  therefore  that  the  plaintiff  could  not  maintain 
an  action  in  England  on  a  verbal  contract  extending  over  a  year  in 
France,  where  no  writing  was  required ;  that  the  remedy  may  exist 
in  France,  though  not  enforceable  in  England.  But  the  17th  section 
was  considered  to  avoid  the  Contract  altogether,  therefore  to  aft'ect 
the  "solemnities" ;  and  therefore  a  verbal  contract  good  where 
made  can  be  enforced  in  an  English  Court,  notwithstanding  its  com- 
ing expressly  within  the  17th  section. 

This  decision  is  strongly  questioned  by  Willes,  J.,  in  Williams  v. 
Wheeler,  8  C.  B.  N.  S.  316.  He  says:  "I  cannot  help  observing 
that  I  should  require  much  more  argument  to  satisfy  me  that  a  con- 
tract made  in  France  without  writing,  which  is  valid  by  the  French 
law,  is  incapable  of  being  enforced  in  an  English  Court,  by  reason 
of  the  requirements  of  the  English  law  as  to  the  formalities  of  con- 
tracts made  in  England.  The  general  rule  is  that  locus  regit  actum. 
And,  although  I  fully  recognize  the  rule  upon  which  the  judgment 
of  this  Court  in  Leroux  v.  Brown  professes  to  be  founded:  viz.,  that 
the  procedure  is  regulated  by  the  lex  fori,  I  am  not  satisfied  that 
either  of  the  sections  of  the  Statute  of  Frauds  to  which  reference 
has  been  made  warrants  the  decision." 

This  doubt  as  to  Leroux  v.  Brown,  repeated  in  Gibson  v.  Hol- 
land, does  not,  however,  help  the  objections  taken  by  the  defendant. 

It  was  also  argued  that,  as  the  contract  was  to  be  performed  in 
Toronto  by  the  delivery  of  the  goods  to  the  carrier  and  by  payment 


Sec.  3)  "shall  be  allowed  to  be  good"  633 

there,  the  law  of  the  place  of  performance  should  govern.  On  this 
subject  Sir  George  Turner  says,  in  the  judgment  already  cited : 
"Every  one  who  is  but  moderately  familiar  with  the  text  books  and 
decisions  must  know  how  easy  it  is  to  produce  authorities  on  either 
side,  when  the  question  is  by  what  laAv  to  interpret  a  contract  in 
one  country,  and  to  be  performed,  wholly  or  partly,  in  another; 
but  if  these  be  carefully  examined,  it  will  be  found,  after  all,  that 
the  same  general  principles  have  for  the  most  part  prevailed  through- 
out, and  that  where  the  conclusions  vary,  they  do  so  from  distinc- 
tions more  or  less  minute  in  the  facts." 

It  may  well  be  that  if  any  part  of  the  contract  to  be  performed 
in  England  would  be  in  itself  contrary  to  or  in  violation  of  our 
law,  our  Courts  would  refuse  to  enforce  it,  even  if  shown  to  be 
legal  by  the  lex  loci  contractus.  See  Robinson  v.  Bland,  2  Burr. 
1077;  Grell  v.  Levy,  16  C.  B.  N.  S.  JZ;  and  the  subject  discussed. 
Story,  Conflict  of  Laws,  §§  279,  280;  2  Kent,  Com.  458;  Tudor, 
Lea.  Cas.  Merc.  L.  213. 

But  we  have  seen  no  case  in  which,  if  the  parties  had  bound 
themselves  by  a  contract  lawful  and  obligatory  in  the  place  of  mak- 
ing, its  performance  in  another  country  would  be  refused,  because 
certain  solemnities  required  by  the  law  of  the  latter  had  not  been 
observed  in  its  original  creation. 

If  the  parties  have  once  bound  themselves  lawfully  for  any  uni- 
versally lawful  purpose,  such  as  here  for  the  sale  of  goods  at  a  fixed 
price,  it  appears  to  us  that  our  Courts  must  hold  them  bound  here 
as  they  would  be  in  the  place  of  contract. 

We  think,  on  the  whole,  the  rule  must  be  discharged. 

Rule  discharged.^® 


BIRD  et  al.  v.  MUNROE. 

(Supreme  Judicial  Court  of  Maine,  1877.     66  Me.  337,  22  Am.  Rep.  571.) 

PETJ2RS,  J.  '°  On  March  2,  1874,  at  Rockland,  in  this  state,  the  de- 
fendant contracted  verbally  with  the  plaintiffs  for  the  purchase  of  a 
quantity  of  ice,  to  be  delivered,  (by  immediate  shipments,)  to  the  de- 
fendant in  New  York.  On  March  10,  1874,  or  thereabouts,  the  de- 
fendant, by  his  want  of  readiness  to  receive  a  portion  of  the  ice  as 
he  had  agreed  to,  temporarily  prevented  the  plaintiffs  from  performing 
the  contract  on  their  part  according  to  the  preparations  made  by  them 
for  the  purpose.  On  March  24,  1874,  the  parties,  then  in  New  York, 
put  their  previous  verbal  contract  into  writing,  ante-dating  it  as  an 
original  contract  made  at  Rockland  on  March  2,  1874.  On  the  same 
day   (March  24,)  by  consent  of  the  defendant,  the  plaintiffs  sold  the 

19  See  Hunt  v.  Jones,  12  R.  I.  265,  34  Am.  Rep.  635  (1879). 
2  0  The  statement  of  facts  is  omitted. 


€34  STATUTE    OF   FRAUDS  (Ch.  8 

same  ice  to  another  party,  reserving  their  claim  against  the  defendant 
for  the  damages  sustained  by  them  by  the  breach  of  the  contract  by 
the  defendant  on  March  10th  or  about  that  time.  This  action  was  com- 
menced on  April  11,  1874,  counting  on  the  contract  as  made  on  March 
2,  and  declaring  for  damages  sustained  by  the  breach  of  contract  on 
March  10,  or  thereabouts  and  prior  to  March  24,  1874.  Several  ob- 
jections are  set  up  against  the  plaintiffs'  right  to  recover. 

The  first  objection  is,  that  in  some  respects  the  allegations  in  the 
writ  and  the  written  proof  do  not  concur.  But  we  pass  this  point,  as 
any  imperfection  in  the  writ  may,  either  with  or  without  terms,  be 
corrected  by  amendment  hereafter. 

Then  it  is  claimed  for  the  defendant  that,  as  matter  of  fact,  the  par- 
ties intended  to  make  a  new  and  original  contract  as  of  March  24.  by 
their  writing  made  on  that  day  and  antedated  March  2,  and  that  it 
was  not  their  purpose  thereby  to  give  expression  and  efficacy  to  any 
unwritten  contract  made  by  them  before  that  time.  But  we  think  a 
jury  would  be  well  warranted  in  coming  to  a  different  conclusion.  Un- 
doubtedly there  are  circumstances  tending  to  throw  some  doubt  upon 
the  idea  that  both  parties  understood  that  a  contract  was  fully  entered 
into  on  iSIarch  2,  1874,  but  that  doubt  is  much  more  than  overcome 
when  all  the  written  and  oral  evidence  is  considered  together.  We 
think  the  writing  made  on  the  24th  March,  with  the  explanations  as 
to  its  origin,  is  to  be  considered  precisely  as  if  the  parties  on  that  day 
had  signed  a  paper  dated  of  that  date,  certifying  and  admitting  that 
they  had  on  the  2d  day  of  ^larch  made  a  verbal  contract  and  stating 
in  exact  written  terms  just  what  such  verbal  contract  was.  Parol 
evidence  is  proper  to  show  the  situation  of  the  parties  and  the  circum- 
stances under  which  the  contract  was  made.  It  explains  but  does 
not  alter  the  terms  of  the  contract.  The  defendant  himself  invokes  it 
to  show  that,  according  to  his  view,  the  paper  bears  an  erroneous  date. 
Such  evidence  merely  discloses  in  this  case  such  facts  as  are  part  of 
the  res  gestae.  Benjamin  on  Sales,  §  213;  Stoops  v.  Smith,  100  Mass. 
63,  66,  1  Am.  Rep.  85 ;  and  cases  there  cited. 

Then,  the  defendant  next  contends  that,  even  if  the  writing  signed 
by  the  parties  was  intended  by  them  to  operate  retroactively  as  of  the 
first  named  date,  as  a  matter  of  law,  it  cannot  be  permitted  to  have 
that  effect  and  meet  the  requirements  of  the  statute  of  frauds.  The 
position  of  the  defendant  is,  that  all  which  took  place  between  the 
parties  before  the  24th  of  March  was  of  the  nature  of  negotiation  and 
proposition  only ;  and  that  there  was  no  valid  contract,  such  as  is  called 
for  by  the  statute  of  frauds,  before  that  day;  and  that  the  action  is 
not  maintainable,  because  the  breach  of  contract  is  alleged  to  have  oc- 
curred before  that  time.  The  plaintiffs,  on  the  other  hand,  contend 
that  the  real  contract  was  made  verbally  on  the  2d  of  March,  and 
that  the  written  instrument  is  sufficient  proof  to  make  the  verbal  con- 
tract a  valid  one  as  of  that  date,  (March  2,)  although  the  written  proof 
was  not  made  out  until  twenty-two  days  after  that  time.    Was  the  valid 


Sec.  3)  "shall  be  allowed  to  be  good"  635 

contract,  therefore,  made  on  March  2d  or  March  the  24th  ?  The  point 
raised  is,  whether,  in  view  of  the  statute  of  frauds,  the  writing  in  this 
case  shall  be  considered  as  constituting-  the  contract  itself  or  at  any 
rate  any  substantial  portion  of  it,  or  whether  it  may  be  regarded  as 
merely  the  necessary  legal  evidence  by  means  of  which  the  prior  un- 
written contract  may  be  proved.  In  other  words,  is  the  writing  the 
contract,  or  only  evidence  of  it ;   we  incline  to  the  latter  view. 

The  peculiar  wording  of  the  statute  presents  a  strong  argument  for 
such  a  determination.  The  section  reads :  "No  contract  for  the  sale 
or  any  goods,  wares,  or  merchandise,  for  thirty  dollars  or  more,  shall 
be  valid,  unless  the  purchaser  accepts  and  receives  part  of  the  goods, 
or  gives  something  in  earnest  to  bind  the  bargain,  or  in  part  payment 
thereof,  or  some  note  or  memorandum  thereof  is  made  and  signed  by 
the  party  to  be  charged  thereby,  or  his  agent."  In  the  first  place,  the 
statute  does  not  go  to  all  contracts  of  sale,  but  only  to  those  where 
the  price  is  over  a  certain  sum.  Then,  the  requirement  of  the  statute 
is  in  the  alternative.  The  contract  need  not  be  evidenced  by  writing 
at  all,  provided  "the  purchaser  accepts  and  receives  a  part  of  the  goods, 
or  gives  something  in  earnest  to  bind  the  bargain  or  in  part  payment 
thereof."  If  any  one  of  these  circumstances  will  as  effectually  perfect 
the  sale  as  a  writing  would,  it  is  not  easily  seen  how  the  writing  can 
actually  constitute  the  contract,  merely  because  a  writing  happens  to 
exist.  It  could  not  with  any  correctness  be  said,  that  anything  given 
in  earnest  to  bind  a  bargain  was  a  substantial  part  of  the  bargain 
itself,  or  anything  more  than  a  particular  mode  of  proof.  Then,  it 
is  not  the  contract  that  is  required  to  be  in  writing,  but  only  "some 
note  or  memorandum  thereof."  This  language  supposes  that  the  verbal 
bargain  may  be  first  made,  and  a  memorandum  of  it  given  afterwards. 
It  also  implies  that  no  set  and  formal  agreement  is  called  for.  Chan- 
cellor Kent  says  "the  instrument  is  liberally  construed  without  re- 
gard to  forms."  The  briefest  possible  forms  of  a  bargain  have  been 
deemed  sufficient  in  many  cases.  Certain  important  elements  of  a 
completed  contract  may  be  omitted  altogether.  For  instance,  in  this 
state,  the  consideration  for  the  promise  is  not  required  to  be  expressed 
in  writing.  Gillighan  v.  Boardman,  29  Me.  79.  Again,  it  is  provided 
that  the  note  or  memorandum  is  sufficient,  if  signed  only  by  the  per- 
son sought  to  be  charged.  One  party  may  be  held  thereby  and  the 
other  not  be.  There  may  be  a  mutuality  of  contract  but  not  of  evi- 
dence or  of  remedy.  Still,  if  the  writing  is  to  be  regarded  in  all  cases 
as  constituting  the  contract,  in  many  cases  there  would  be  but  one 
contracting  party. 

Another  idea  gives  weight  to  the  argument  for  the  position  advo- 
cated by  the  plaintiffs ;  and  that  is,  that  such  a  construction  of  the 
statute  upholds  contracts  according  to  the  intention  of  parties  thereto, 
while  it,  at  the  same  time,  fully  subserves  all  the  purposes  for  which 
the  statute  was  created.  It  must  be  borne  in  mind  that  verbal  bargains 
for  the  sale  of  personal  property  are  good  at  common  law.     Nor  are 


636  STATUTE    OF   FRAUDS  (Ch.  8 

they  made  illegal  by  the  statute.  Parties  can  execute  them  if  they 
mutually  please  to  do  so.  The  object  of  the  statute  is  to  prevent  per- 
jury and  fraud.  Of  course,  perjury  and  fraud  cannot  be  wholly  pre- 
vented; but,  as  said  by  Digelow,  J.,  (Marsh  v.  Hyde,  3  Gray  [Mass.] 
331,)  "a  memorandum  in  writing  will  be  as  effectual  against  perjury, 
although  signed  subsequently  to  the  making  of  a  verbal  contract,  as  if 
it  had  been  executed  at  the  moment  when  the  parties  consummated 
their  agreement  by  word  of  mouth."  We  think  it  would  be  more  so. 
A  person  would  be  likely  to  commit  himself  in  writing  with  more 
care  and  caution  after  time  to  take  a  second  thought.  The  locus  pcen- 
itentise  remains  to  him. 

By  no  means  are  we  to  be  understood  as  saying  that  all  written  in- 
struments will  satisfy  the  statute,  by  having  the  effect  to  make  the 
contracts  described  in  them  valid  from  their  first  verbal  inception. 
That  must  depend  upon  circumstances.  In  many,  and  perhaps,  most 
instances  such  a  version  of  the  transaction  would  not  agree  with  the 
actual  understanding  of  the  parties.  In  many  cases,  undoubtedly,  the 
written  instrument  is  per  se  the  contract  of  the  parties.  In  many 
cases,  as  for  instance,  like  the  antedating  of  the  deed  in  Egery  v. 
Woodard,  56  Me.  45,  cited  by  the  defendant,  the  contract,  (by  deed,) 
could  not  take  effect  before  delivery;  the  law  forbids  it.  So  a  will 
made  by  parol  is  absolutely  void.  But  all  these  classes  of  cases  dif- 
fer from  the  case  before  us. 

A  distinction  is  attempted  to  be  set  up  between  the  meaning  to  be 
given  to  R.  S.  c.  Ill,  §  4,  where  it  is  provided  that  no  unwritten  con- 
tract for  the  sale  of  goods  "shall  be  valid,"  and  that  to  be  given  to 
the  several  preceding  sections  where  it  provided  that  upon  certain 
other  kinds  of  unwritten  contracts  "no  action  shall  be  maintained ;" 
the  position  taken  being  that  in  the  former  case  the  contract  is  void, 
and  in  the  other  cases  only  voidable  perhaps,  or  not  enforceable  by 
suit  at  law.  But  the  distinction  is  without  any  essential  difference,  and 
is  now  so  regarded  by  authors  generally  and  in  most  of  the  decided 
cases.  All  the  sections  referred  to  rest  upon  precisely  the  same  policy. 
Exactly  the  same  object  is  aimed  at  in  all. 

The  difference  of  phraseology  in  the  different  sections  of  the  origi- 
nal English  statute,  of  which  ours  is  a  substantial  copy,  may  perhaps 
be  accounted  for  by  the  fact,  as  is  generally  conceded,  that  the  author- 
ship of  the  statute  was  the  work  of  different  hands.  Although  our 
statute  (R.  S.  1871,  §  4,)  uses  the  words  "no  contract  shall  be  valid," 
our  previous  statutes  used  the  phrase  "shall  be  allowed  to  be  good ;" 
and  the  change  was  made  when  the  statutes  were  revised  in  1857,  with- 
out any  legislative  intent  to  make  an  alteration  in  the  sense  of  the  sec- 
tion. (R.  S.  1841,  c.  136,  §  4.)  The  two  sets  of  phrases  were  un- 
doubtedly deemed  to  be  equivalent  expressions.  The  words  of  the 
original  English  section  are,  "shall  not  be  allowed  to  be  good,"  mean- 
ing, it  is  said,  not  good  for  the  purpose  of  sustaining  an  action  thereon 
without  written  proof.     Browne,  St.  Frauds.  §§  115,   136,  and  notes 


I 


Sec.  3)        "shall  be  allowed  to  be  good' 


637 


to  the  sections;  Benjamin's  Sales,  §  114;  Townsend  v.  Hargraves, 
118  Mass.  325;   and  cases  there  cited. 

There  are  few  decisions  that  bear  directly  upon  the  precise  point 
which  this  case  presents  to  us.  From  the  nature  of  things,  a  state  of 
facts  involving  the  question  would  seldom  exist.  But  we  regard  the 
case  of  Townsend  v.  Hargraves,  above  cited,  as  representing  the  prin- 
ciple very  pointedly.  It  was  there  held  that  the  statute  of  frauds  af- 
fects the  remedy  only  and  not  the  validity  of  the  contract;  and  that 
v/here  there  has  been  a  completed  oral  contract  of  sale  of  goods,  the 
acceptance  and  receipt  of  part  of  the  goods  by  the  purchaser  takes  the 
case  out  of  the  statute,  although  such  acceptance  and  receipt  are  after 
the  rest  of  the  goods  are  destroyed  by  fire  while  in  the  hands  of  the 
seller  or  his  agent.  The  date  of  the  agreement  rather  than  the  date  of 
the  part  acceptance  was  treated  as  the  time  when  the  contract  was 
made;  and  the  risk  of  the  loss  of  the  goods  was  cast  upon  the  buyer. 
Vincent  v.  Germond,  11  Johns.  (N.  Y.)  283,  is  to  the  same  effect. 

We  are  not  aware  of  any  case  where  the  question  has  been  directly 
adjudicated  adversely  to  these  cases.  Webster  v.  Zielly,  52  Barb.  (N. 
Y.)  482,  in  the  argument  of  the  court,  directly  admits  the  same  prin- 
ciple. The  case  of  Leather  Cloth  Co.  v.  Hieronimus,  L.  R.  10  Q. 
B.  140,  seems  also  to  be  an  authority  directly  in  point.  Thompson  v. 
Alger,  12  Mete.  (Mass.)  428,  435  and  Marsh  v.  Hyde,  3  Gray  (Mass.) 
331,  relied  on  by  defendant,  do  not,  in  their  results,  oppose  the  idea 
of  the  above  cases,  although  there  may  be  some  expression  in  them  in- 
consistent therewith.  Altogether  another  question  was  before  the  court 
in  the  latter  cases. 

But  there -are  a  great  many  cases  where,  in  construing  the  statute 
of  frauds,  the  force  and  effect  of  the  decisions  go  to  sustain  the  view 
we  take  of  this  question,  by  the  very  strongest  implication:  Such  as, 
that  the  statute  does  not  apply  where  the  contract  has  been  executed 
on  both  sides,  Bucknam  v.  Nash,  12  Me.  474;  that  no  person  can 
take  advantage  of  the  statute  but  the  parties  to  the  contract,  and  their 
privies,  Cowan  v.  Adams,  10  Me.  374,  25  Am.  Dec.  242 ;  that  the  mem- 
orandum may  be  made  by  a  broker,  Hinckley  v.  Arey,  27  Me.  362; 
or  by  an  auctioneer,  Cleaves  v.  Foss,  4  Me.  (4  Greenl.)  1 ;  that  a  sale 
of  personal  property  is  valid  when  there  has  been  a  delivery  and  accept- 
ance of  part,  although  the  part  be  accepted  several  hours  after  the 
sale,  Davis  v.  Moore,  13  Me.  424;  or  several  days  after,  Bush  v. 
Holmes,  53  Me.  417;  or  ever  so  long  after,  Browne,  St.  Frauds,  § 
337,  and  cases  there  noted;  that  a  creditor,  receiving  payments  from 
his  debtor  without  any  direction  as  to  their  application,  may  apply 
tliem  to  a  debt  on  which  the  statute  of  frauds  does  not  allow  an 
action  to  be  maintained,  Haynes  v.  Nice,  100  Admass.  327,  1  Am.  Rep. 
109 ;  that  a  contract  made  in  France,  and  valid  there  without  a  writ- 
ing, could  not  be  enforced  in  England  without  one,  upon  the  ground 
that  the  statute  related  to  the  mode  of  procedure  and  not  to  the  va- 
lidity of  the  contract,  Leroux  v.  Brown,  12  C.  B.  801 ;   but  this  case 


638  STATUTE    OF   FRAUDS  (Ch.  8 

has  been  questioned  somewhat;  that  a  witness  may  be  guilty  of  per- 
jury who  falsely  swears  to  a  fact  which  may  not  be  competent  evidence 
by  the  statute  of  frauds,  but  which  becomes  material  because  not  ob- 
jected to  by  the  party  against  whom  it  was  offered  and  received,  How- 
ard V.  Sexton,  4  N.  Y.  157;  that  an  agent  who  signs  a  memorandum 
need  not  have  his  authority  at  the  time  the  contract  is  entered  into,  if 
his  act  is  orally  ratified  afterwards,  Maclean  v.  Dunn,  4  Bing.  722 ; 
that  the  identical  agreement  need  not  be  signed,  and  that  it  is  sufficient 
if  it  is  acknowledged  by  any  other  instrument  duly  signed.  Gale  v. 
Nixon,  6  Cow.  (N.  Y.)  445  ;  that  the  recognition  of  the  contract  may 
be  contained  in  a  letter,  or  in  several  letters,  if  so  connected  by  "writ- 
ten links"  as  to  form  sufficient  evidence  of  the  contract ;  that  the  let- 
ters may  be  addressed  to  a  third  person,  Browne,  St.  Frauds,  §  346; 
Fyson  v.  Kitton,  30  E.  L.  &  Eq.  374;  Gibson  v.  Holland,  L.  R.  1  C. 
P.  1 ;  that  an  agent  may  write  his  own  name  instead  of  that  of  his 
principal  if  intending  to  bind  his  principal  by  it,  Williams  v.  Bacon, 
2  Gray  (^lass.)  387,  393,  and  citations  there;  that  a  proposal  in  writ- 
ing, if  accepted  by  the  other  party  by  parol,  is  a  sufficient  memorandum, 
Reuss  V.  Picksley,  L.  R.  1  Exc.  342 ;  that  where  one  party  is  bound 
by  a  note  or  memorandum  the  other  party  may  be  bound  if  he  admits 
the  writing  by  another  writing  by  him  subsequently  signed,  Dobell  v. 
Hutchinson,  3  A.  &  E.  355  ;  that  the  written  contract  may  be  rescinded 
by  parol,  although  many  decisions  are  opposed  to  this  proposition,  Rich- 
ardson V.  Cooper,  25  Me.  450;  that  equity  will  interfere  to  prevent  a 
party  making  the  statute  an  instrument  of  fraud,  Ryan  v.  Dox,  34  N. 
Y.  307,  90  Am.  Dec.  696;  Hassam  v.  Barrett,  115  Mass.  256,  258; 
that  a  contract  verbally  made  may  be  maintained  for  certain  purposes, 
notwithstanding  the  statute ;  that  a  person  who  pays  his  money  under 
it  cannot  recover  it  back  if  the  other  side  is  willing  to  perform ;  and 
he  can  recover  if  performance  is  refused,  Chapman  v.  Rich,  63  Me. 
588,  and  cases  cited ;  that  a  respondent  in  equity  waives  the  statute  as 
a  defense  unless  set  up  in  plea  or  answer,  Adams  v.  Patrick,  30  Vt. 
516;  that  it  must  be  specially  pleaded  in  an  action  at  law,  Middlesex 
Co.  V.  Osgood,  4  Gray  (Mass.)  447;  Lawrence  v.  Chase,  54  Me.  196; 
that  the  defendant  may  waive  the  protection  of  the  statute  and  admit 
verbal  evidence  and  become  bound  by  it,  Browne  St.  Frauds,  §  135. 

It  may  be  remarked,  however,  that  in  most  courts  a  defendant  may 
avail  himself  of  a  defense  of  the  statute  under  the  general  issue.  The 
different  rule  in  Massachusetts  and  Maine,  grew  out  of  the  practice 
act  in  the  one  state  and  in  the  statute  requiring  the  filing  of  specifica- 
tions in  the  other. 

It  is  clear  from  the  foregoing  cases,  as  well  as  from  many  more  that 
might  be  cited,  that  the  statute  does  not  forbid  parol  contracts,  but 
only  precludes  the  bringing  of  actions  to  enforce  them.  As  said  in 
Thornton  v.  Kempster,  5  Taunt.  786,  788,  "the  statute  of  frauds  throws 
a  difficulty  in  the  way  of  the  evidence."  In  a  case  already  cited, 
Jervis,  C.  J.,  said,  "the  effect  of  the  section  is  not  to  avoid  the  con- 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         639* 

tract,  but  to  bar  the  remedy  upon  it,  unless  there  be  writing."  See 
analogous  case  of  McClellan  v.  McClellan,  65  Me.  500. 

But  the  defendant  contends  that  this  course  of  reasoning  would 
make  a  memorandum  sufficient  if  made  after  action  brought,  and  that 
the  authorities  do  not  agree  to  that  proposition.  There  has  been  some 
judicial  inclination  to  favor  the  doctrine  to  that  extent  even,  and  there 
may  be  some  logic  in  it.  Still  the  current  of  decision  requires  that  the 
writing  must  exist  before  action  brought.  And  the  reason  for  the  re- 
quirement does  not  militate  against  the  idea  that  a  memorandum  is- 
only  evidence  of  the  contract.  There  is  no  actionable  contract  before 
memorandum  obtained.  The  contract  cannot  be  sued  until  it  has  been 
legally  verified  by  writing;  until  then  there  is  no  cavise  of  action,  al- 
though there  is  a  contract.  The  writing  is  a  condition  precedent  to  the 
right  to  sue.  Willes,  J.,  perhaps  correctly  describes  it  in  Gibson  v. 
Holland,  supra,  when  he  says,  "the  memorandum  is  in  some  way  to- 
stand  in  the  place  of  a  contract."  He  adds :  "The  courts  have  consid- 
ered the  intention  of  the  legislature  to  be  of  a  mixed  character ;  to 
prevent  persons  from  having  actions  brought  against  them  so  long  as 
no  written  evidence  was  existing  when  the  action  was  instituted." 
Browne,  St.  Frauds,  §  338.  Benjamin's  Sales,  §  159.  Fricker  v. 
Thomlinson,  1  Man.  &  Gr.  772.  Bradford  v.  Spyker,  32  Ala.  134. 
Bill  V.  Bament,  9  M.  &  W.  36.  Philbrook  v.  Belknap,  6  Vt.  383.  In 
the  last  case  it  is  said,  "strictly  speaking,  the  statute  does  not  make 
the  contract  void,  except  for  the  purpose  of  sustaining  an  action  upon 
it,  to  enforce  it." 

Action  to  stand  for  trial. 

Apple;ton,  C.  J.,  and  Walton,  Danforth,  Virgin  and  Libbdy,. 
JJ.,  concurred. 


SECTION  4.— ACCEPTANCE  AND  RECEIPT  OF  PART 
OF  GOODS 


CHAPLIN  V.  ROGERS. 

(Court  of  King's  Bench,  ISOl.     1  East,  192.) 

In  an  action  for  goods  sold  and  delivered,  the  case  proved  was,  that 
the  parties  being  together  in  the  plaintiff's  farm  yard,  the  defendant, 
after  some  objections  and  doubts  upon  the  quality  of  a  stack  of  hay 
(particularly  the  inside  part)  then  standing  in  the  yard,  agreed  to  take 
it  at  2s.  6d.  per  hundred  weight.  Soon  after  he  sent  a  farmer  to  look 
at  it,  whose  opinion  was  unfavourable.  But  about  two  months  after- 
wards another  farmer  of  the  name  of  Loft  agreed  with  the  defend- 


C40  STATUTE    OF   FRAUDS  (Cll.  8 

ant  for  the  purchase  of  some  of  this  hay  still  standing  untouched  in 
the  plaintiff's  yard,  and  the  defendant  told  Loft  to  go  there  and  ask 
what  condition  it  was  in,  saying  he  had  only  agreed  for  it  if  it  were 
good.  The  plaintiff  having  informed  Loft  it  was  in  a  good  state,  he 
agreed  to  give  the  defendant  3s.  9d.  per  cwt.  for  it,  the  defendant  hav- 
ing told  him  that  he  had  agreed  to  give  the  plaintiff  3s.  6d.  for  it. 
Loft  thereupon  brought  away  thirty-six  hundred  weight;  but  this 
latter  fact  was  without  the  knowledge,  and  against  the  direction  of 
the  defendant.  There  was  a  contrariety  of  evidence  as  to  the  quality 
of  the  hay  when  the  stack  was  afterwards  cut. 

At  the  trial  before  Hotham,  B.,  on  the  last  Norfolk  circuit,  Sellon, 
Serjt.,  for  the  defendant,  objected  that  the  contract  of  sale  was  fraud- 
ulent and  void  by  the  statute  of  frauds,  being  for  the  sale  of  a  com- 
modity no  part  of  which  was  delivered,  and  of  which  there  was  no 
acceptance  by  the  defendant.  But  the  learned  Judge  left  it  to  the 
jury  to  decide  whether  the  sale  had  been  fraudulent,  and  whether  un- 
der the  circumstances  there  had  been  an  acceptance  by  the  defendant ; 
and  they  found  for  the  plaintiff  on  both  points,  and  gave  him  £50. 
damages,  being  the  value  of  the  hay  at  the  price  agreed  for.  In  the 
last  term,  a  rule  was  obtained  calling  on  the  plaintiff  to  shew  cause 
why  the  verdict  should  not  be  set  aside  and  a  new  trial  had,  on  the 
grounds  that  the  learned  Judge  had  left  that  as  a  question  of  fact  to 
the  jury,  which  he  himself  ought  to  have  decided  as  an  objection  in 
point  of  law  arising  on  the  statute  of  frauds;  and  because  the  evi- 
dence did  not  warrant  the  verdict. 

Lord  Kenyon,  C.  J.  It  is. of  great  consequence  to  preserve  unim- 
paired the  several  provisions  of  the  statute  of  frauds,  which  is  one 
of  the  wisest  laws  in  our  statute  book.  My  opinion  will  not  infringe 
upon  it;  for  here  the  report  states,  that  the  question  was  specifically 
left  to  the  jury  whether  or  not  there  was  an  acceptance  of  the  hay 
by  the  defendant,  and  they  have  found  that  there  was,  which  puts  an 
end  to  any  question  of  law.  I  do  not  mean  to  disturb  the  settled  con- 
struction of  the  statute,  that  in  order  to  take  a  contract  for  the  sale 
of  goods  of  this  value'  out  of  it  there  must  either  be  a  part  delivery 
of  the  thing,  or  a  part  payment  of  the  consideration,  or  the  agreement 
must  be  reduced  to  writing  in  the  manner  therein  specified.  But  I  am 
not  satisfied  in  this  case,  that  the  jury  have  not  done  rightly  in  finding 
the  fact  of  a  delivery.  Where  goods  are  ponderous,  and  incapable 
as  here  of  being  handed  over  from  one  to  another,  there  need  not  be 
an  actual  delivery ;  but  it  may  be  done  by  that  which  is  tantamount, 
such  as  the  delivery  of  the  key  of  a  warehouse  in  which  the  goods 
are  lodged,  or  by  delivery  of  other  indicia  of  property.  Now  here  the 
defendant  dealt  with  this  commodity  afterwards  as  if  it  were  in  his 
actual  possession :  for  he  sold  part  of  it  to  another  person.  There- 
fore, as  upon  the  whole  justice  has  been  done,  the  verdict  ought  to 
stand. 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         641 

The  Other  Judges  agreed  that  there  was  sufficient  evidence  of  a  de- 
livery to  and  acceptance  by  the  defendant  to  leave  to  the  jury. 
Rule  discharged. 


EDAN  V.  DUDFIELD. 

(Court  of  Queen's  Bench,  1841.     1  Q.  B.  302.) 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Pleas:   1.  As  to  all  but  £1.  9s.  2d.,  parcel,  etc.,  nunquam  indebitatus. 
Issue  thereon. 

2.  As  to  the  same,  a  set-off.  Replication,  denying  the  debt  set-off. 
Issue  thereon. 

3.  As  to  the  £1.  9s.  2d.,  tender  of  the  same,  which  the  plaintiff  took 
out  of  Court,  and  acknowledged  satisfaction  pro  tanto. 

On  the  trial,  before  Lord  Denman,  C.  J.,  at  the  Middlesex  sittings 
after  Hilary  term,  1839,  it  appeared  that  the  defendant  was  employed 
by  the  plaintiff  to  clear  goods  for  him  at  the  custom  house,  and  was 
accustomed  to  enter  goods  of  the  plaintiff,  and  did  actually  enter  the 
goods  now  in  question  (German  toys),  then  belonging  to  the  plaintiff, 
in  his  own  name.  In  the  beginning  of  April,  1838,  plaintiff  was  in 
defendant's  debt  to  the  amount  of  about  i50. ;  and  defendant  pro- 
posed to  plaintiff  that  the  goods  should  be  sold,  and  that  defendant 
should  retain  his  debt  out  of  the  proceeds;  the  plaintiff  assented  to 
this,  and  gave  defendant  a  written  authority  to  sell  them.  After- 
wards, and  before  any  sale,  defendant,  in  conversation  with  an  agent 
of  plaintiff,  said  that  he  would  keep  the  goods  himself  at  the  invoice 
price,  less  a  discount  of  15  per  cent. :  this  was  communicated  to  plain- 
tiff. The  goods  were  subsequently  sold  by  defendant,  about  the  end  of 
April.  Afterwards  the  defendant  delivered  an  account  current  to  the 
plaintiff,  in  which  was  an  item,  under  date  of  April,  1838,  "Two  cases 
of  toys,  etc.,  sold  for  £120."  The  counsel  for  the  defendant  objected 
that  there  was  no  acceptance  to  satisfy  section  17  of  the  Statute  of 
Frauds ;  but  the  Lord  Chief  Justice  held  that  there  was  a  case  for  the 
jury,  reserving  leave  to  move  for  a  nonsuit.    Verdict  for  plaintiff. 

Lord  Ddnman,  C.  J.,  in  this  term  (January  12th),  delivered  the 
judgment  of  the  Court.  After  stating  the  ground  of  motion  to  be  that 
there  was  no  memorandum  in  writing,  nor,  as  the  defendant  alleged, 
any  acceptance,  his  Lordship  proceeded  as  follows : 

The  facts  were,  that  the  defendant  had  acted  as  agent  for  the  plain- 
tiff on  several  occasions  in  relation  to  certain  merchandises  imported 
from  France,  and  that  the  goods  in  question  were  lying  at  the  custom 
house  in  the  defendant's  name,  to  be  sold  by  him  for  the  plaintiff. 
The  plaintiff  was  considerably  indebted  to  the  defendant,  who  was 
pressing  that  a  sale  should  be  made,  that  he  might  pay  himself  out  of 
WooDW.  Sales — 41 


042  STATUTE    OF   FRAUDS  (Ch.  8 

the  proceeds;  and  an  authority  to  sell,  dated  6th  April,  was  given  by 
the  plaintiff  to  the  defendant,  and  produced  in  the  course  of  the  plain- 
tiff's evidence.  But  a  witness  stated  that,  at  the  end  of  the  same 
month,  he  had  called  on  the  defendant  on  behalf  of  the  plaintiff,  and 
that,  in  that  conversation,  the  defendant  finally  agreed  to  buy  these 
goods  himself,  15  per  cent,  under  the  cost  price.  The  defendant  sub- 
sequently sold  the  goods,  and  rendered  a  debtor  and  creditor  account 
to  the  plaintiff,  in  which  credit  was  given  to  the  plaintiff  for  the  goods, 
by  an  item  in  these  words,  "Goods"  (describing  them)  "sold  for  il20." 
The  action  was  brought,  in  effect,  for  that  sum ;  and  the  verdict  passed 
accordingly. 

The  plaintiff  argued  that  this  parol  contract  of  sale  was  binding 
within  the  statute,  because  the  defendant  had  accepted  the  goods,  in 
selling  them  and  keeping  the  money.  This  was  denied ;  and  it  was 
said  that  the  statute,  requiring  acceptance  and  actual  receipt  of  the 
whole  or  part  where  there  was  no  written  memorandum,  could  not 
be  satisfied  in  the  case  of  one  at  the  time  of  the  bargain  possessed 
of  the  goods,  inasmuch  as  that  circumstance  prevents  them  from  be- 
ing delivered  to  him,  or  actually  received  by  him,  in  virtue  of  the 
sale.  At  all  events,  it  was  contended  that  no  act  could  be  relied  on 
to  prove  acceptance  and  receipt,  but  what  was  inconsistent  with  the 
purpose  of  the  prior  possession ;  whereas,  in  this  case,  all  that  was  done, 
the  sale  and  the  account  rendered,  were  perfectly  consistent  with  the 
authority  previously  given,  and  the  defendant's  character  of  agent.  We 
have  no  doubt  that  one  person  in  possession  of  another's  goods  may 
become  the  purchaser  of  thern  by  parol,  and  may  do  subsequent  acts, 
without  any  writing  between  the  parties,  which  amount  to  acceptance ; 
and  the  effect  of  such  acts,  necessarily  to  be  proved  by  parol  evidence, 
must  be  submitted  to  the  jury.  We  entertain  this  opinion  after  fully 
considering  all  the  cases  cited,  especially  Elmore  v.  Stone,  1  Taunt. 
458;  Nicholle  v.  Plume,  1  C.  &  P.  272;  JMaberley  v.  Sheppard,  10 
Bing.  99.  And  see  Dodsley  v.  Varley,  12  A.  &  E.  632,  agreeing  that 
such  evidence  must  be  unequivocal,  but  thinking  the  question,  whether 
it  is  so  or  not  under  all  the  circumstances,  fact  for  the  jury,  not  mat- 
ter of  law  for  the  Court, 

It  was  indeed  contended  that  parol  evidence  was  inadmissible  to 
explain  the  character  of  the  acts  relied  on  to  prove  acceptance ;  for 
that  to  admit  it  would  let  in  all  the  inconvenience  which  the  statute 
was  intended  to  prevent.  No  case,  however,  warrants  the  holding  the 
rule  so  strict :  nor  does  convenience  require  it ;  for,  where  there  is 
the  foundation  of  an  act  done  to  build  upon,  the  admission  of  dec- 
larations to  explain  that  act  lets  in  only  that  unavoidable  degree  of 
uncertainty  to  which  all  transactions  to  be  proved  by  ordinary  parol 
evidence  are  hable.  Upon  this  principle,  Stat.  9  Geo.  IV,  c.  14,  §  1, 
on  a  very  analogous  matter,  has  been  construed  in  the  Court  of  Ex- 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         643 

chequer.  For,  whilst  in  Willis  v.  Newham,  3  Y.  &  J.  518,  it  was 
held  that  part  payment,  to  take  a  case  out  of  the  Statute  of  Limita- 
tions, could  not  be  proved  by  a  verbal  acknowledgment  only,  it  was 
held  in  Waters  v.  Tompkins,  2  C,  M.  &  R.  723,  S.  C,  Tyrwh.  &  Gn 
137  that,  where  a  sum  had  been  paid  without  any  statement  on  what 
account,  declarations  were  admissible  to  explain  on  what  account.. 
Therefore  a  nonsuit  cannot  be  entered. 

The  motion  for  a  new  trial,  on  the  ground  that  the  verdict  was 
against  the  evidence,  was  supported  by  some  very  strong  observations 
on  the  probabilities  of  the  case,  which  were  not  however  exclusively  in 
favour  of  the  defendant.  It  was  moved  for,  also,  on  defendant's 
affidavit,  which  we  have  thought  it  right  to  examine  carefully  with 
those  on  the  other  side.  The  answer  which  these  give  is  complete : 
no  subsequent  information  has  been  or  can  be  obtained;  and  the  de- 
fendant's case  is  narrowed  to  the  improbability  that  that  of  his  ad- 
versary can  be  true.  But  this  has  been  already  considered  by  the  jury, 
who  were  satisfied  with  the  proof  of  it  by  a  witness  whose  character 
stands  unimpeached. 
Rule  discharged.^^ 


BILL  V.  BAMENT. 

(Court  of  Exchequer,  ISll.     9  Mees.  &  W.  36.) 

Assumpsit  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Plea,  non  assumpsit.  At  the  trial  before  Lord  Abinger,  C.  B.,  at 
the  London  sittings  after  Trinity  term,  the  following  facts  appeared : 

The  defendant  ordered  of  one  Harvey,  who  was  an  agent  of  the 
plaintiff  under  a  del  credere  commission,  a  quantity  of  goods,  in- 
cluding twenty  dozen  hair-brushes  and  twelve  dozen  clothes-brushes, 
to  be  paid  for  on  delivery,  at  a  stipulated  price;    but  no  memorandum 

21  In  Dorsey  v.  Pike,  50  Hun  (N.  Y.)  534,  3  N.  Y.  Supp.  730  (1SS9)  which 
was  an  action  for  the  price  of  an  engine,  boiler,  and  inunp,  with  appendages, 
alleged  to  have  been  sold  by  the  plaintiff  to  the  defendant,  it  appeared  that 
the  apparatus  was  in  the  possession  of  the  defendant  or  her  husband  at  the 
time  of  the  agreement.  Said  the  court:  "Assuming  that  the  machine  was 
in  the  possession  of  the  defendant  at  the  time  the  agreement  to  purchase 
was  made,  and  that  the  husband,  as  her  agent,  made  it,  those  facts  alone 
were  not  sufficient  to  give  validity  to  the  contract.  To  hold  otherwise 
would  have  the  effect  to  render  the  mere  words  of  the  parties  to  such  a 
contract  effectual,  and  the  purpose  of  the  statute  would  be  defeated.  The 
then  possession  was  in  no  manner  produced  by  or  derived  from  such  contract, 
but  was  lawfully  taken  and  held  under  another  and  independent  arrange- 
ment between  the  parties ;  and  until  the  purchase  was  evidenced  by  some 
act  of  acceptance  under  or  in  pursuance  of  the  agreement  to  buy,  no  valid 
sale  would  be  accomplished.  *  *  *  The  mere  fact  that  the  property  was 
in  possession  of  the  defendant  at  the  time  of  making  the  contract  furnished 
no  evidence  of  acceptance  in  its  support."  But  see  Bristol  v.  Mente,  79  App. 
Div.  67,  SO  N.  Y.  Supp.  52  (1903),  affirmed  without  opinion  178  N.  Y.  599, 
70  N.  E.  1096  (1904). 


(!4-i  STATUTE    OF   FRAUDS  (Ch.  8 

in  writing  of  the  bargain  was  made  at  the  time.  On  receiving  no- 
tice from  Harvey  that  the  brnshes  had  arrived  at  his  warehouse,  the 
defendant,  on  the  22d  of  March  last,  went  there,  and  directed  a  boy, 
whom  he  saw  there,  to  alter  the  mark  "No.  1,"  upon  one  of  the  pack- 
ages, to  "No.  12,"  and  to  send  the  whole  of  the  goods  to  the  St. 
Catharine's  Docks.  The  next  day,  an  invoice  was  delivered  to  the 
defendant,  charging  the  brushes  respectively  at  the  rate  of  8s.  and 
12s.  each.  The  defendant  objected  to  this  price,  alleging  that  by  the 
contract,  as  he  had  understood  it,  the  above  were  to  be  the  prices 
of  the  brushes  per  dozen;  and  refused  to  pay  for  them.  On  the 
24th  of  March,  the  plaintiff  commenced  the  present  action  for  the 
price.  On  the  27th,  the  defendant,  at  Harvey's  request,  wrote  in 
Harvey's  ledger,  at  the  bottom  of  the  page  which  contained  the  state- 
ment of  the  articles  ordered  by  the  defendant,  and  which  page  was 
headed  "Bill  &  Co.,"  the  following  words:  "Received  the  above,  John 
Bament."  The  rest  of  the  goods  were  sent  to  and  received  by  the 
defendant.  It  was  objected  for  the  defendant,  that  there  was  no  evi- 
dence of  any  contract  in  writing,  or  of  any  acceptance  of  the  brushes, 
sufficient  to  satisfy  the  17th  section  of  the  Statute  of  Frauds.  The 
Lord  Chief  Baron  reserved  the  point,  and  the  plaintiff  had  a  verdict 
for  the  amount  claimed,  leave  being  reserved  to  the  defendant  to 
move  to  enter  a  nonsuit. 

Parks,  B.  I  concur  in  thinking  that  there  was  no  evidence  to  go 
to  the  jury  to  satisfy  the  Statute  of  Frauds.  With  regard  to  the 
point  which  has  been  made  by  Mr.  Martin,  that  a  memorandum  in 
writing  after  action  brought  is  sufficient,  it  is  certainly  quite  a  new 
point,  but  I  am  clearly  of  opinion  that  it  is  untenable.  There  must, 
in  order  to  sustain  the  action,  be  a  good  contract  in  existence  at  the 
time  of  action  brought;  and  to  make  it  a  good  contract  under  the 
statute,  there  must  be  one  of  the  three  requisites  therein  mentioned. 
I  think,  therefore,  that  a  written  memorandum,  or  part  payment,  after 
action  brought,  is  not  sufficient  to  satisfy  the  statute.  Then,  to  take 
the  case  out  of  the  17th  section,  there  must  be  both  delivery  and 
acceptance ;  and  the  question  is,  whether  they  have  been  proved  in 
the  present  case.  I  think  they  have  not.  I  agree  that  there  was  evi- 
dence for  the  jury  of  acceptance,  or  rather  of  intended  acceptance. 
The  direction  to  mark  the  goods  was  evidence  to  go  to  the  jury  quo 
animo  the  defendant  took  possession  of  them :  so  also,  the  receipt 
was  some  evidence  of  an  acceptance.  But  there  must  also  be  a  de- 
livery; and  to  constitute  that,  the  possession  must  have  been  parted 
with  by  the  owner,  so  as  to  deprive  him  of  the  right  of  lien.  Harvey 
might  have  agreed  to  hold  the  goods  as  the  warehouseman  of  the 
defendant,  so  as  to  deprive  himself  of  the  right  to  refuse  to  deliver 
them  without  payment  of  the  price;  but  of  that  there  was  no  proof. 
There  was  no  evidence  of  actual  marking  of  the  goods,  or  that  the 
order  to  mark  was  assented  to  by  Harvey.     I  am  of  opinion,  there- 


Sec.  4)  ACCEPTANCE   AND    RECEIPT    OF    PART    OF    GOODS  645 

■fore,  that  there  was  no  sufficient  proof  of  acceptance  to  satisfy  the 
statute,  and  that  the  case  falls  within  the  17th  section. 
Rule  absolute  accordingly." 


FARINA  V.  HOME. 
(Court  of  Exchequer,  3846.     16  Mees.  &  W.  119.) 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated. 
Plea,    nunquam   indebitatus. 

At  the  trial,  before  the  under-sheriff  of  Middlesex,  it  appeared 
that  the  action  was  brought  by  the  plaintiff,  the  well-known  manu- 
facturer of  Eau  de  Cologne,  residing  at  the  city  of  Cologne,  to  re- 
cover from  the  defendant,  a  dealer  in  Eau  de  Cologne  in  London,  the 
sum  of  £15.,  price  of  25  dozen  of  Eau  de  Cologne,  which,  in  July, 
1845,  the  defendant  had  verbally  ordered  from  the  plaintiff.  It  was 
accordingly  sent  by  the  plaintiff  from  abroad  to  a  shipping  agent  of 
the  plaintiff  in  London,  named  Brenchley,  who  received  it,  and  ware- 
housed it  with  one  Barber,  a  wharfinger,  at  the  same  time  informing 
the  defendant  of  its  arrival.  On  receipt  of  the  goods.  Barber  handed 
to  Brenchley  a  delivery  warrant,  dated  21st  July,  whereby  they  were 
made  deliverable  to  Brenchley  or  his  assignee  by  endorsement,  on 
payment  of  rent  and  charges  from  the  25th  of  July.  Brenchley 
forthwith  endorsed  and  sent  it  to  the  defendant.  The  defendant 
kept  the  warrant  for  about  ten  months,  and  although  repeatedly  ap- 
plied to,  to  pay  the  price  of  and  charges  on  the  goods,  he  did  not 
do  so;  and  he  refused  also  to  give  back  the  warrant,  saying  that  he 
had  sent  it  to  his  solicitor,  and  that  he  intended  to  defend  the  ac- 
tion, for  he  had  never  ordered  the  goods ;  and  adding,  that  they 
would  remain  for  the  present  in  bond. 

Upon  these  facts,  it  was  contended  for  the  defendant,  that  there 
was  no  evidence  of  the  delivery  and  acceptance  of  the  goods,  suffi- 
cient to  satisfy  the  Statute  of  Frauds.  The  under-sheriff  left  the 
question  to  the  jury,  whether  the  defendant  had  accepted  and  re- 
ceived the  goods ;  stating  that,  to  bring  the  case  within  the  statute, 
it  must  be  an  acceptance  with  the  intention  of  taking  possession  as 
owner.     The   jury   found  a  verdict   for  plaintiff,   damages   £16.    lis. 

In  Easter  Term,  Prentice  obtained  a  rule  nisi  for  a  new  trial,  on 
the  ground  of  misdirection. 

Parke;,  B.  In  this  case,  which  was  argued  before  us,  in  the  absence 
of  the  Lord  Chief  Baron,  a  few  days  ago,  the  only  point  we  wished 
to  consider  was,  whether  there  was  sufficient  evidence  of  the  accept- 
ance and  actual  receipt  of  the  goods  to  satisfy  the  17th  section  of  the 
Statute  of  Frauds.    The  evidence  as  to  this  part  of  the  case  was,  that, 

22  A  coDCuiTiug  opinion  was  aelivered  by  Lord  Abiuger,  C.  B. 


646  STATUTE    OF   FRAUDS  (Ch.  8 

after  the  defendant  had  verbally  ordered  a  quantity  of  Eau  de  Col- 
ogne, and  at  the  price  of  more  than  f  10.,  from  the  plaintitt's  agent 
in  London,  (the  plaintiff  residing  at  Cologne.)  a  case  containing  the 
quantity  ordered  was  received  by  the  agent,  and  warehoused  by  him 
with  a  wharfinger  and  warehousekeeper,  who  gave  for  it  a  docu- 
ment, dated  the  21st  of  July,  which  is  called  a  warrant,  by  which 
the  case  was  made  deliverable  to  the  agent  or  his  assignee,  by  en- 
dorsement, on  payment  of  rent  and  charges  from  the  25th  of  July, 
and  the  agent  endorsed  it  to  the  defendant,  and  sent  it  to  him.  This 
warrant  the  defendant  kept  for  some  months.  He  was  repeatedly 
applied  to  for  the  charges  upon  and  price  of  the  Eau  de  Cologne, 
which  he  did  not  pay;  nor  did  he  return  the  warrant  when  asked 
for  it,  but  said  he  had  sent  it  to  his  solicitor,  and  meant  to  defend  the 
action,  as  he  had  never  ordered  the  goods ;  and  he  further  said,  the 
goods  would  remain  at  present  in  bond. 

It  was  contended,  on  the  trial  before  the  under-sheriff,  that  there 
was  no  such  evidence  of  the  acceptance  and  receipt  of  the  goods  as 
to  bind  the  bargain.  The  under-sheriff  left  the  question  of  receipt 
and  acceptance  to  the  jvltj,  stating,  and  correctly  stating,  that,  to 
bring  the  case  within  the  statute,  the  acceptance  must  be  with  the 
intention  of  taking  possession  as  owner.  The  jury  found  a  verdict 
for  the  plaintiff.  The  under-sheriff  ordered  the  writ  of  trial  to  be 
retained,  in  order  to  allow  time  for  an  application  to  the  Court.  On 
a  motion  for  a  new  trial,  we  intimated  our  opinion  that  there  was 
evidence  to  go  to  the  jury  of  the  defendant's  acceptance  of  the  goods 
by  retaining  the  delivery  warrant ;  but  Mr.  Prentice  insisted  that 
there  was  no  sufficient  evidence  of  the  actual  receipt  of  the  goods, 
that  is,  the  delivery  of  the  possession  of  the  goods  on  behalf  of  the 
vendor  to  the  vendee,  and  the  receipt  of  the  possession  by  the  vendee : 
and  that  the  delivery  and  receipt  of  the  warrant  was  not  in  eft'ect  the 
same  thing  as  the  delivery  and  receipt  of  the  goods ;  and  we  are  all 
of  that  opinion.  This  warrant  is  no  more  than  an  engagement  by 
the  wharfinger  to  deliver  to  the  consignee,  or  any  one  he  may  ap- 
point; and  the  wharfinger  holds  the  goods  as  the  agent  of  the  con- 
signor, (who  is  the  vendor's  agent,)  and  his  possession  is  that  of  the 
consignee,  until  an  assignment  has  taken  place,  and  the  wharfinger 
has  attorned,  so  to  speak,  to  the  assignee,  and  agreed  with  him  to 
hold  for  him.  Then,  and  not  till  then,  the  wharfinger  is  the  agent 
or  bailee  of  the  assignee,  and  his  possession  that  of  the  assignee,  and 
then  only  is  there  a  constructive  delivery  to  him.  In  the  mean  time, 
the  warrant,  and  the  endorsement  of  the  warrant,  is  nothing  more 
than  an  offer  to  hold  the  goods  as  the  warehouseman  of  the  as- 
signee. The  case  is  in  principle  the  same  as  that  of  Bentall  v.  Bum. 
and  others,  which  are  stated  and  well  discussed  in  a  recent  able  work 
of  Mr.  Blackburn,  "On  the  Contract  of  Sale,"  pp.  27,  41,  297;  and 
in  Mr.  C.  Addison's  work,  p.  70.     We  all  therefore  think,  that  though 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         647 

there  was  sufficient  evidence  of  the  acceptance,  if  the  goods  had  been 
delivered  to  the  defendant,  there  is  none  of  the  receipt;    and  there- 
fore there  must  be  a  new  trial 
Rule  absolute. 


MORTON  V.  TIBBETT. 

(Court  of  Queen's  Bench,  1850.    15  Q.  B.  428.) 

Debt  for  goods  sold  and  delivered,  and  goods  bargained  and  sold. 
Plea,  nunquam  indebitatus.     Issue  thereon. 

On  the  trial  before  Pollock,  C.  B.,  at  the  Cambridgeshire  spring 
assizes,  1849,  it  appeared  that  the  action  was  brought  to  recover  the 
price  of  fifty  quarters  of  wheat.  On  25th  August,  1848,  the  plain- 
tiff and  defendant  being  at  March  market,  sold  the  wheat  to  the  de- 
fendant by  sample.  The  defendant  said  that  he  would  send  one  Edg- 
ley,  a  general  carrier  and  lighterman,  on  the  following  morning  to 
receive  the  residue  of  the  wheat  in  a  lighter  for  the  purpose  of  con- 
veying it  by  water  from  March,  where  it  then  was,  to  Wisbeach : 
and  the  defendant  himself  took  the  sample  away  with  him.  On 
26th  August  Edgley  received  the  wheat  accordingly.  On  the  same 
day  the  defendant  sold  the  wheat  at  a  profit,  by  the  same  sample, 
to  one  Hampson  at  Wisbeach  market.  The  wheat  arrived  at  Wis- 
beach in  due  course  on  the  evening  of  Monday  the  28th  August,  and 
was  tendered  by  Edgley  to  Hampson  on  the  following  morning,  when 
he  refused  to  take  it,  on  the  ground  that  it  did  not  correspond  with 
the  sample.  Up  to  this  time  the  defendant  had  not  seen  the  wheat; 
nor  had  any  one  examined  it  on  his  behalf.  Notice  of  Hampson's 
repudiation  of  his  contract  was  given  to  the  defendant;  and  the  de- 
fendant on  Wednesday  the  30th  August  sent  a  letter  to  the  plaintiff 
repudiating  his  contract  with  the  plaintiff  on  the  same  ground. 

There  was  no  memorandum  in  writing  of  the  bargain  within  §  17 
of  the  statute  of  frauds,  29  Car.  II,  c.  3;  and  it  was  objected  for 
the  defendant  that  there  was  no  evidence  of  acceptance  and  receipt 
to  satisfy  the  requirements  of  the  same  section.  The  lord  chief 
baron  overruled  the  objection;  and  the  counsel  for  the  defendant 
addressed  the  jury  exclusively  on  the  question  of  such  acceptance 
and  receipt.  A  verdict  was  found  for  the  plaintiff,  and  leave  given 
to  move  to  enter  a  nonsuit,  if  the  court  should  think  either  that  there 
was  no  evidence  of  acceptance  and  receipt  or  no  such  evidence  as 
justified  the  verdict. 

Worlledge  in  Easter  term,   1849,  obtained  a  rule  nisi  accordingly. 

Campbell,  C.  J.  In  this  case  the  question  submitted  to  us  is, 
whether  there  was  any  evidence  on  which  the  jury  could  be  justified 
in  finding  that  the  buyer  accepted  the  goods  and  actually  received 
the  same,  so  as  to  render  him  liable  as  buyer,  although  he  did  not 


648  STATUTE    OF   FRAUDS  (Ch.  8 

give  any  thing  in  earnest  to  bind  the  bargain  or  in  part  payment, 
and  there  was  no  note  or  memorandum   in  writing  of  the  bargain. 

It  would  be  very  difficult  to  reconcile  the  cases  on  this  subject ; 
and  the  difference  between  them  may  be  accounted  for  by  the  exact 
words  of  the  17th  section  of  the  statute  of  frauds  not  having  been 
always  had  in  recollection.  Judges  as  well  as  counsel  have  supposed 
that,  to  dispense  with  a  written  memorandum  of  the  bargain,  there 
must  first  have  been  a  receipt  of  the  goods  by  the  buyer,  and  after 
that  an  actual  acceptance  of  the  same.  Hence  perhaps  has  arisen 
the  notion  that  there  must  have  been  such  an  acceptance  as  would 
preclude  the  buyer  from  questioning  the  quantity  or  quality  of  the 
goods,  or  in  any  way  disputing  that  the  contract  has  been  fully  per- 
formed by  the  vendor.  But  the  words  of  the  act  of  parliament  are: 
"No  contract  for  the  sale  of  any  goods,  wares  and  merchandizes, 
for  the  price  of  ilO.  sterling  or  upwards,  shall  be  allowed  to  be  good, 
except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually 
receive  the  same,  or  give  something  in  earnest  to  bind  the  bargain, 
or  in  part  of  payment,  or  that  some  note  or  memorandum  in  writing 
of  the  said  bargain  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  lawfully  authorized." 

It  is  remarkable  that,  notwithstanding  the  importance  of  having  a 
written  memorandum  of  the  bargain,  the  legislature  appears  to  have 
been  willing  that  this  might  be  dispensed  with  where  by  mutual  con- 
sent there  has  been  part  performance.  Hence  the  payment  of  any 
sum  in  earnest  to  bind  the  bargain  or  in  part  payment  is  sufficient. 
This  act  on  the  part  of  the  buyer,  if  acceded  to  on  the  part  of  the 
vendor,  is  sufficient.  The  sarhe  effect  is  given  to  the  corresponding 
net  by  the  vendor  of  delivering  part  of  the  goods  sold  to  the  buyer, 
if  the  buyer  shall  accept  such  part  and  actually  receive  the  same. 
As  part  payment  however  minute  the  sum  may  be  is  sufficient,  so 
part  delivery  however  minute  the  portion  may  be  is  sufficient.  This 
shews  conclusively  that  the  condition  imposed  was  not  the  com- 
plete fulfilment  of  the  contract  to  the  satisfaction  of  the  buyer. 
In  truth  the  eft'ect  of  fulfilling  the  condition  is  merely  to  waive  writ- 
ten evidence  of  the  contract  and  to  allow  the  contract  to  be  es- 
tablished by  parol  as  before  the  statute  of  frauds  passed.  The 
question  may  then  arise,  whether  it  has  been  performed  either  on 
the  one  side  or  the  other.  The  acceptance  is  to  be  something  which 
is  to  precede  or  at  any  rate  to  be  contemporaneous  with  the  actual 
receipt  of  the  goods,  and  is  not  to  be  a  subsequent  act  after  the  goods 
have  been  actually  received,  weighed,  measured,  or  examined. 

As  the  act  of  parliament  expressly  makes  the  acceptance  and  ac- 
tual receipt  of  any  part  of  the  goods  sold  sufficient,  it  must  be  open 
to  the  buyer  to  object  at  all  events  to  the  quantity  and  quality  of  the 
residue,  and  even  where  there  is  a  sale  by  sample  that  the  residue 
oft'ered  does  not  correspond  with  the  sample.     We  are  therefore  of 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         649 

opinion  that,  whether  or  not  a  delivery  of  the  goods  sold  to  a  carrier 
or  any  agent  of  the  buyer  is  sufiicient,  still  there  may  be  an  accept- 
ance and  receipt  within  the  meaning  of  the  act  without  the  buyer 
having  examined  the  goods  or  done  any  thing  to  preclude  him  from 
contending  that  they  do  not  correspond  with  the  contract.  The  ac- 
ceptance to  let  in  parol  evidence  of  the  contract  appears  to  us  to 
be  a  different  acceptance  from  that  which  affords  conclusive  evidence 
of  the  contract  having  been   fulfilled. 

We  are  therefore  of  opinion  in  this  case  that,  although  the  de- 
fendant had  done  nothing  which  would  have  precluded  him  from 
objecting  that  the  wheat  delivered  to  Edgley  was  not  according  to 
the  contract,  there  was  evidence  to  justify  the  jury  in  finding  that 
the  defendant  accepted  and  received  it. 

We  will  now  examine  the  cases  which  are  supposed  to  prove  the 
doctrine  that  there  can  be  no  acceptance  within  the  meaning  of  the 
statute  of  frauds  unless  the  buyer  is  precluded  from  objecting  that 
the  vendor  has  not  fully  performed  the  contract  on  his  part. 

The  first  of  these  was  Howe  v.  Palmer,  3  B.  &  Aid.  321,  which  we 
clearly  think  was  well  decided,  although  we  cannot  concur  in  all  the 
reasons  given  for  the  decision.  There  the  only  evidence  of  accept- 
ance and  receipt  was  that  the  agent  of  the  vendor  who  had  verbally 
sold  to  the  defendant  twelve  bushels  of  tares,  part  of  a  larger  quan- 
tity in  the  vendor's  possession,  had  measured  off  twelve  bushels  of 
the  tares,  and  set  them  apart  for  the  purchaser.  According  to  the 
contract  they  were  to  remain  in  the  possession  of  the  vendor  till 
called  for.  The  purchaser  therefore  neither  had  accepted  nor  received 
the  goods.  Abbott,  C.  J.,  does  say:  "If  he  had  once  accepted  he 
could  not  afterwards  make  any  objection,  even  if  it  turned  out  that 
the  tares  did  not  correspond  with  the  sample."  But  this  observation 
was  cjuite  unnecessary  for  the  determination  of  the  case;  and,  with 
the  most  sincere  respect  to  the  great  judge  from  whom  it  fell,  we 
do  not  think  that  it  is  applicable.  The  proper  ratio  decidendi  seems 
to  us  to  be  given  by  Holroyd,  J.,  where  he  says :  "In  this  case  there 
has  been  no  actual  receipt  of  any  part  of  the  goods  sold  within  the 
usual  meaning  of  the  term,  and  I  think  that  what  has  been  done 
ought  not  to  be  considered  in  point  of  law  as  an  acceptance.  For 
supposing  that  it  was  made  part  of  the  contract  in  this  case  that  the 
seller  should  set  apart  and  measure  the  thing  sold,  that  would  not 
make  the  act  of  measuring  amount  to  a  virtual  acceptance  or  receipt 
of  the  goods  by  the  buyer." 

The  next  case  relied  upon  is  Tempest  v.  Fitzgerald,  3  B.  &  Aid. 
680,  where  in  an  action  for  the  price  of  a  horse  that  had  died  after 
the  time  when  he  was  sold  by  parol  and  before  he  was  delivered 
or  paid  for,  the  question  arose  upon  whom  the  loss  should  fall.  The 
only  evidence  of  acceptance  and  receipt  was  that,  while  the  horse 
remained  in  the  possession  of  the  vendor,  the  purchaser  made  his 
servant  gallop  the  horse  and  gave  some  directions  about  his  treat- 


•650  STATUTE    OF   FRAUDS  (Ch.  8 

merit,  requesting  that  he  might  be  kept  by  the  vendor  a  week  longer. 
The  court  held  that  there  had  been  no  acceptance  and  receipt  of  the 
horse  by  the  purchaser.  But  the  case  has  little  connection  with  the 
doctrine  contended  for,  that  there  must  be  an  opportunity  for  the 
vendor  to  inspect  the  quality  of  the  thing  sold;  and  Abbott,  C.  J., 
founds  his  judgment  upon  this  consideration,  that  the  defendant  had 
no  right  of  property  in  the  horse  till  the  price  was  paid,  and  could 
not  till  then  exercise  any  act  of  ownership  over  him.  Holroyd,  J., 
says :  "There  is  no  evidence  to  shew  that"  the  vendor  "had  ever 
parted  with  the  possession"  of  the  horse. 

Next  comes  Hanson  v.  Armitage,  5  B.  &  Aid.  557.  There  the 
vendor,  who  resided  in  London,  having  been  in  the  habit  of  selling 
goods  to  a  customer  in  the  country  and  of  delivering  them  to  a 
wharfinger  to  be  forwarded  by  the  first  ship,  in  pursuance  of  a  verbal 
order  from  the  customer  delivered  a  parcel  of  goods  to  the  wharf- 
inger to  be  forwarded  in  the  usual  manner.  The  customer  had  done 
nothing  beyond  giving  the  verbal  order  for  the  goods.  Abbott,  C. 
J.,  in  a  very  few  words  delivered  the  judgment  of  the  court  that 
an  action  could  not  be  maintained  for  the  price  of  the  goods,  on  the 
ground  that  the  acceptance  in  this  case  not  being  by  the  party  him- 
self, was  not  sufficient ,  referring  to  Howe  v.  Palmer,  3  B.  &  Aid. 
321,  where  he  says :  "It  was  held  that  there  could  be  no  actual  accept- 
ance so  long  as  the  buyer  continued  to  have  a  right  to  object  either 
to  the  quantum  or  quality  of  the  goods."  But  the  decision  may  well 
stand  on  other  grounds ;  and  we  may  observe  that  it  is  an  actual 
receipt  of  the  goods  which  the  statute  requires,  and  not  an  actual 
acceptance. 

Carter  v.  Toussaint,  5  B.  &  Aid.  855,  was  likewise  relied  up- 
on, but  it  was  merely  (like  Tempest  v.  Fitzgerald,  3  B.  &  Aid. 
680)  a  case  of  a  sale  by  parol  of  a  horse  that  remained  always 
in  the  possession  and  under  the  control  of  the  vendor,  so  that  he 
could  not  have  been  accepted  and  received  by  the  purchaser.  Abbott, 
C.  J.,  says :  "The  plaintifii's  character  of  owner  remained  unchanged 
from  first  to  last." 

The  next  case  is  Smith  v.  Surman,  9  B.  &  C.  561,  and  there  after 
a  sale  of  timber  by  parol  the  purchaser  had  offered  to  sell  the  butts, 
and  had  given  some  directions  about  crosscutting  the  timber;  but 
the  evidence  clearly  proved  that  the  whole  continued  to  remain  in 
the  possession  of  the  vendor.  The  court,  as  might  have  been  ex- 
pected, held  that  there  could  be  no  receipt  by  the  purchaser  while 
the  possession  of  the  goods  remained  with  the  vendor.  A  very  learn- 
ed judge,  my  Brother  Parke,  does  unnecessarily  add  (9  B.  &  C.  577) : 
^'That  the  later  cases  have  established  that,  unless  there  has  been  such 
a  dealing  on  the  part  of  the  purchaser  as  to  deprive  him  of  any 
right  to  object  to  the  quantity  or  quality  of  the  goods,  or  to  deprive 
the  seller  of  his  right  of  lien,  there  cannot  be  any  part  acceptance." 
That  there  can  be  no  acceptance  and  receipt  by  the  purchaser  while 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         651 

the  lien  of  the  vendor  remains  is  clear  enough,  for  the  vendor's  lien 
necessarily  supposes  that  he  retains  the  possession  of  the  goods;  but 
I  must  be  permitted  to  doubt  whether  the  cases  referred  to  have 
established  the  residue  of  the  rule. 

The  last  case  cited  on  behalf  of  the  defendant  was  Norman  v. 
Phillips,  14  M.  &  W.  277.  This  case  very  much  resembled  Hanson 
V.  Armitage,  5  B.  &  Aid.  557,  and  presented  no  stronger  evidence  of 
acceptance  and  receipt.  The  defendant  living  at  Wallingford  gave 
the  plaintiff,  a  timber  merchant  in  London,  a  verbal  order  for  timber, 
directing  it  to  be  sent  to  the  Paddington  station  of  the  Great  West- 
ern Railway  so  that  it  might  be  forwarded  to  him  at  Wallingford. 
The  timber  was  accordingly  forwarded  to  the  Wallingford  station ; 
but  the  defendant  being  informed  of  its  arrival  refused  to  have  any 
thing  to  do  with  it.  The  court  held  that  although  there  might  be  a 
scintilla  of  evidence  for  the  jury  of  an  acceptance  of  the  timber  with- 
in the  statute  of  frauds,  yet  there  was  not  sufficient  to  warrant  them 
in  finding  that  there  was  such  an  acceptance ;  and  the  court  set  aside 
a  verdict  for  the  plaintiff  as  not  warranted  by  the  evidence.  Alder- 
son,  B.,  says :  "The  true  rule  appears  to  me  to  be  that  acceptance 
and  delivery  under  the  statute  of  frauds  means  such  an  acceptance 
as  precludes  the  purchaser  from  objecting  to  the  quality  of  the 
goods."  He  adds  what,  with  great  deference,  is  a  better  reason : 
"The  carrier  is  only  an  agent  for  the  purpose  of  carrying,  and  here 
the  purchaser  himself  immediately  refused  to  take  the  goods."  It 
was  upon  this  reason  that  the  rest  of  the  court  appears  to  have  pro- 
ceeded. 

If  there  were  such  a  rule  as  is  contended  for  it  would  be  decisive 
against  the  plaintiff  in  this  case,  for  the  defendant  never  had  an  op- 
portunity of  examining  the  goods  sold :  there  is  no  evidence  that 
Edgley  was  his  agent  for  that  purpose;  and  he  had  done  nothing  to 
preclude  him  from  objecting  to  the  quality  of  the  wheat.  But  if 
there  be  no  such  rule,  then  surely  there  was  evidence  to  submit  to 
the  jury  and  to  justify  them  in  finding  an  acceptance  and  receipt. 
He  specially  sent  Edgley  to  receive  the  wheat  after  the  delivery  of 
the  wheat  to  his  agent  and  when  it  was  no  longer  in  the  possession 
of  the  vendor,  instead  of  rejecting  it  as  in  other  cases,  he  exercised 
an  act  of  ownership  over  it  by  re-selling  it  at  a  profit,  and  altering 
its  destination  by  sending  it  to  another  wharf,  there  to  be  delivered 
to  his  vendee.  The  wheat  was  then  constructively  in  his  own  pos- 
session ;  and  could  such  a  re-sale  and  order  take  place  without  his 
having  accepted  and  received  the  commodity?  Does  it  lie  in  his 
mouth  to  say  that  he  has  not  accepted  that  which  he  has  re-sold  and 
sent  on  to  be  delivered  to  another?  At  any  rate  is  not  this  evidence 
from  which  such  an  acceptance  and  receipt  may  be  inferred  by  the 
jury?  Upon  similar  evidence  the  finding  of  an  acceptance  and  re- 
ceipt has  been  sanctioned  by  very  eminent  judges. 

In  Hart  v.  Sattley,  3  Campb.  528,  where  goods  had  been  verbally 


652  STATUTE    OF  FRAUDS  (Ch.  8 

ordered  to  be  sent  from  London  to  Dartmouth,  and  were  sent  by  a 
carrier  employed  by  the  defendant,  and  were  not  proved  to  have 
been  rejected  by  him,  although  there  was  no  proof  that  they  had 
come  to  his  hands,  Chambre,  J.,  is  reported  to  have  said :  "I  think 
under  the  circumstances  of  this  case  the  defendant  must  be  consid- 
ered as  having  constituted  the  master  of  the  ship  his  agent  to  ac- 
cept and  receive  the  goods."  The  plaintiff  recovered  a  verdict  which 
was  not  disturbed. 

In  Chaplin  v.  Rogers,  1  East,  192,  where  a  stack  of  hay  being  sold 
by  parol  to  the  defendant  he,  without  paying  for  it  or  removing  it, 
re-sold  a  part  of  it  to  another  person  who  took  it  away,  and  the  jury 
found  that  the  defendant  had  accepted  and  received  the  stack  of 
hay.  Lord  Kenyon  said :  "The  question  was  specifically  left  to  the 
jury  whether  or  not  there  was  an  acceptance  of  the  hay  by  the  de- 
fendant, and  they  have  found  that  there  was,  which  puts  an  end  to 
any  question  of  law."  "Here  the  defendant  dealt  with  this  com- 
modity afterwards  as  if  it  were  in  his  actual  possession ;  for  he  sold 
part  of  it  to  another  person."  "The  other  judges  agreed  that  there 
was  sufficient  evidence  of  a  delivery  to  and  acceptance  by  the  de- 
fendant to  leave  to  the  jury."  And  the  verdict  for  the  plaintiff  was 
confirmed. 

So  in  Blenkinsop  v.  Clayton,  7  Taunt.  597,  Gibbs,  C.  J.,  and  the 
whole  Court  of  Common  Pleas,  agreed  that  if  a  person  who  has  con- 
tracted for  the  purchase  of  goods  offers  to  re-sell  them  as  his  own, 
whether  this  be  proof  of  an  acceptance  and  receipt  of  the  goods  by 
himself  is  a  question  for  the  jury. 

I  will  only  further  mention  the  well-considered  case  of  Bushel  v, 
Wheeler,  8  Jurist,  532,  15  Q.  B.  442,  note,  decided  in  this  Court. 
The  defendant  residing  in  Herefordshire  had  verbally  ordered  goods 
from  a  manufacturer  at  Bristol;  according  to  his  orders  they  were 
sent  to  Hereford  and  deposited  in  a  warehouse  there.  After  they 
had  been  a  considerable  time  there  the  defendant  repudiated  them. 
In  an  action  for  the  price  before  a  most  learned  and  cautious  judge, 
Mr.  Justice  Erskine,  it  was  left  to  the  jury  whether  upon  the  evi- 
dence the  buyer  had  accepted  and  received  the  goods;  and  the  ver- 
dict was  for  the  defendant,  with  liberty  to  enter  a  verdict  for  the 
plaintiff  if  the  court  should  be  of  opinion  that  there  was  an  accept- 
ance. A  rule  to  shew  cause  was  granted ;  and  cause  being  shewn 
the  court  unanimously  approved  of  the  direction,  but  declined  to  take 
upon  themselves  to  enter  a  verdict  for  the  plaintiff,  and  made  a  rule 
absolute  for  a  new  trial.  I  particularly  rely  upon  the  pointed  lan- 
guage in  that  case  of  my  Brother  Coleridge,  who,  after  observing 
that  the  acceptance  required  by  the  statute  must  be  very  clear  and 
unequivocal,  says  that  it  may  be  constructive;  and  adds  that  "it  is 
a  question  for  the  jury,  whether  under  all  the  circumstances"  "the 
acts  which  the  buyer  does  or  forbears  to  do  are  an  acceptance  or 
otherwise." 


Sec.  4)  ACCEPTANCE   AND    RECEIPT    OF    PART    OF    GOODS  653 

These  are  express  decisions  through  a  long  course  of  years  that 
there  may  be  an  acceptance  and  receipt  of  goods  by  a  purchaser  with- 
in the  statute  of  frauds,  although  he  has  had  no  opportunity  of  exam- 
ining them,  and  although  he  has  done  nothing  to  preclude  himself 
from  objecting  that  they  do  not  correspond  with  the  contract.  We 
approve  of  these  decisions  thinking  that  they  do  not  infringe  upon 
the  statute  of  frauds  and  that  they  conduce  to  fair  dealing  in  trade. 

We  are  therefore  of  opinion  that  in  this  case  the  rule  for  entering 
a  nonsuit  should  be  discharged. 

Rule  discharged. 


GARDNER  v.  GROUT. 

(Coiu-t  of  Comuion  Pleas,  1857.     2  C.  B.  [N.  S.]  340.) 

This  was  an  action  for  the  breach  of  a  contract  to  deliver  24^/2 
tons  of  sacks  and  bags,  which  the  defendant  had  agreed  to  sell  to 
the  plaintiff  at  the  price  of  f  11.  per  ton. 

At  the  trial  before  Williams,  J.,  at  the  first  sitting  in  London  in 
the  present  term,  a  contract  by  word  of  mouth  was  proved  in  the 
terms  alleged  in  the  declaration ;  but  there  was  no  contract  in  writ- 
ing, nor  any  part  payment.  The  plaintiff,  however,  relied,  for  the 
purpose  of  taking  the  case  out  of  the  Statute  of  Frauds,  upon  a  part 
delivery  and  acceptance,  as  to  which  the  evidence  was  as  follows : 
Four  days  after  the  sale,  the  plaintiff'  went  to  the  defendant's  ware- 
house, and  asked  for  samples  of  the  sacks  and  bags,  which  were 
given  to  him  by  the  defendant's  foreman,  and  which  he  promised 
to  pay  for  when  the  bulk  (which  was  all  there  at  the  time)  was 
taken  away.  The  samples  so  given  to  the  plaintiff  were  by  the 
defendant's  order  weighed  and  entered. 

On  the  part  of  the  defendant,  it  was  submitted  that  the  taking  the 
samples  was  not  such  a  part  acceptance  of  the  thing  sold  as  would 
satisfy  the  17th  section  of  the  statute. 

For  the  plaintiff',  the  case  of  Hinde  v.  Whitehouse,  7  East,  558, 
was  relied  upon.  There,  sugars,  which  were  in  the  King's  ware- 
house, under  the  locks  of  the  King  and  the  owner,  from  whence 
they  could  not  be  removed  till  the  duties  were  paid,  were  advertised 
for  sale  by  auction  on  the  20th  of  September,  when  samples  of  %lb. 
weight  from  each  hogshead,  drawn  after  the  sugars  had  been  weigh- 
ed and  the  duties  ascertained  at  the  King's  beam,  were  produced 
to  the  bidders  assembled ;  and  the  auctioneer, — having  then  before 
him  the  printed  catalogue  of  sale,  containing  the  lots,  marks,  and 
number  of  hogsheads,  and  the  gross  weight  of  the  sugars,  and  also 
another  w^ritten  paper  containing  the  conditions  of  sale,  which  latter 
he  read  to  the  bidders  as  the  conditions  on  which  the  sugars  mention- 
ed in  the  catalogue  were  to  be  sold,  but  the  two  papers  were  not  ex- 


654  STATUTE    OF   FRAUDS  (Ch.  8 

lernally  annexed,  nor  did  they  contain  any  internal  reference  to  each 
other, — wrote  down  on  the  catalogue  the  name  of  the  highest  bid- 
der, and  the  sum  bid  for  the  particular  lots;  having  first  informed 
the  bidders  that  the  duties  had  not  then  been  paid,  but  would  be 
paid  on  the  morrow  by  the  seller:  and,  after  the  biddings  closed, 
the  samples  were  delivered  to  and  accepted  by  the  purchaser,  ac- 
cording to  the  usual  practice  at  such  sales,  as  part  of  his  purchase, 
to  make  up  the  quantity  marked  as  weighed  at  the  King's  beam : 
and  a  fire  having  consumed  the  sugars  on  the  22d  of  September, 
'oefore  the  duties  could  be  paid,  and  without  the  default  of  the 
seller, — it  was  held,  first,  that,  at  common  law,  there  was  a  sale 
to  change  the  property  at  the  time  and  place  of  auction  though  the 
goods  could  not  be  delivered  till  the  duties  were  paid,  which  was 
known  at  the  time;  such  being  the  manifest  intent  of  the  contract- 
ing parties;  and,  consequently,  that  the  loss  must  fall  upon  the 
buyer, — secondly,  that,  assuming  a  sale  of  goods  by  auction  to  be 
within  the  17th  section  of  the  Statute  of  Frauds,  29  Car.  II,  c.  3, 
and  therefore  requiring  to  be  evidenced  by  a  memorandum  in  writ- 
ing of  the  bargain,  signed  by  the  party  to  be  charged,  or  his  au- 
thorized agent,  except  where  the  buyer  shall  receive  part  of  the 
goods  sold :  yet  here  the  delivery  to  and  acceptance  of  the  samples 
by  the  buyer,  which  delivery  was  made  as  part  of  the  thing  pur- 
chased, and  upon  which  the  duties  were  paid,  at  any  rate  took  the 
case  out  of  the  statute. 

The  learned  judge  left  it  to  the  jury  to  say  whether  the  samples 
of  the  sacks  and  bags  were  delivered  and  accepted  as  part  of  the 
bulk.  The  jury  found  that  they  were,  and  accordingly  a  verdict  was 
taken  for  the  plaintiff  (damages  £40.),  leave  being  reserved  to  the 
defendant  to  move  to  enter  the  verdict  the  other  way,  or  a  nonsuit, 
if  the  court  should  be  of  opinion  that  there  was  no  acceptance  of 
part,  to  take  the  case  out  of  the  statute. 

CoCKBURN,  C.  J.  That  is  a  very  different  case  from  the  present. 
There,  the  buyer  never  saw  the  bulk :  the  things  handed  to  him 
really  were  mere  samples.  But  here  the  plaintiff  receives  part  of 
the  very  things  which  he  has  already  bought.  I  think  there  should 
be  no  rule. 

The  rest  of  the  court  concurring. 

Rule  refused. 


CURRIE  et  al.  v.  ANDERSON. 

(Court  of  Exchequer  Chamber,  1S60.     2  El.  &  El.   592.) 

Declaration  for  goods  sold  and  delivered.  Plea.  Never  indebted 
Issue  thereon. 

At  the  trial,  before  Watson,  B.,  at  the  Liverpool  Summer  Assizes, 
1859,  the  facts  appeared  to  be  as  follows.     The  plaintiffs  were  mer- 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         655- 

chants  and  ship  chandlers  at  Liverpool,  carrying  on  business  under 
the  firm  of  Currie,  Newton  &  Co.,  and  the  defendant  was  a  shipowner 
at  Aberdeen.  On  27th  September,  1855,  the  defendant  called  at  the 
plaintiffs'  office  and  saw  Mr.  Newton,  one  of  the  plaintiffs,  and  verbally 
ordered  of  him  some  stores,  to  the  amount  of  £62.  10s.,  for  The 
Phoenix,  a  ship  of  the  defendant  then  in  the  Black  Sea,  to  be  sent  out 
from  Liverpool,  by  one  of  Mclver's  steamers,  to  Constantinople.  The 
defendant  directed  Newton  to  enter  the  stores  out  at  the  Custom- 
House.  Before  he  ordered  the  stores,  he  had  asked  Newton  whether 
the  plaintiffs  had  ever  sent  any  goods  out  to  Constantinople,  and  wheth' 
er  they  had  any  agent  there?  Newton  answered  that  they  had  no  agent 
there,  but  had  once  consigned  some  goods  there  to  Messrs.  Hanson 
&  Co.  Newton,  having  selected  the  goods  according  to  the  defend- 
ant's order,  namely,  5  tierces  of  beef,  4  barrels  of  pork,  2  barrels  of 
flour,  1  barrel  of  peas,  and  1  keg  of  barley,  entered  them  out  at  the 
Custom-House,  and  sent  them  down  to  Mclver's  steamer  Melita  in  a 
cart,  together  with  two  other  barrels  of  flour,  which  the  defendant, 
having  purchased  of  some  other  person,  had  in  the  meantime  sent 
to  the  plaintiffs'  warehouse,  to  be  sent  to  the  ship  together  with  the 
goods  which  he  had  ordered  of  the  plaintiffs. 

Newton  afterwards  asked  the  defendant  how  the  bills  of  lading  were 
to  be  made  out;  and  the  defendant  said,  "Make  them  out  in  the  name 
of  the  same  parties  you  sent  your  goods  to,"  and  added,  "You  had 
better  make  them  out  in  your  own  name,  for  they  won't  know  me, 
but  will  know  you."  Accordingly,  the  plaintiffs  made  out  the  bill  of 
lading  thus:  "Shipped  by  Currie,  Newton  &  Co."  (here  followed  an 
enumeration  of  the  goods,  which  corresponded  with  the  order  in  all 
respects,  except  that  the  number  of  barrels  of  flour  enumerated  was 
four,  the  two  sent  by  the  defendant  to  the  plaintiffs'  warehouse,  as 
above  mentioned,  being  included).  "To  be  delivered  at  the  port  of 
Constantinople  unto  Messrs.  C.  Hanson  &  Co.  or  their  assigns." 

The  plaintiffs  handed  the  bill  of  lading  to  the  agent  of  the  steamer, 
and  at  the  same  time  (13th  October,  1855)  paid  freight  for  the  whole 
and  received  back  the  bill  of  lading  signed.  On  16th  October,  the  de- 
fendant called  on  the  plaintiffs  and  repaid  the  freight,  and  Newton 
handed  him  the  bill  of  lading.  The  defendant  enclosed  the  bill  of 
lading  in  a  letter  addressed  to  the  captain  of  the  Phoenix,  to  the  care 
of  Messrs.  Hanson  &  Co.,  Constantinople ;  and  wrote  another  letter  to 
the  captain,  advising  him  of  this.  The  captain,  being  absent  on  the 
French  transport  service  in  the  Black  Sea,  did  not  receive  these  letters 
for  some  time,  but  on  doing  so,  in  the  middle  of  March,  1856,  went 
to  Constantinople  and  obtained  the  bill  of  lading  from  Messrs.  Hanson 
&  Co.  The  goods,  however,  were  not  forthcoming.  It  did  not  appear 
whether  or  not  The  Melita  ever  arrived  at  Constantinople.  The  cap- 
tain of  the  Phoenix  returned  the  bill  of  lading  to  the  defendant,  who, 
on  5th  November,  1856,  forwarded  it  from  Aberdeen  to  the  plain- 
tiffs in  a  letter,  in  which  he  said  "I  enclose  the  bill  of  lading  for  stores 


656  STATUTE    OF   FRAUDS  (Ch.  8 

sent  out  to  the  barque  Phoenix.  Please  see  after  them.  I  think  that 
the  master  of  the  steamer  must  account  for  them."  The  plaintiffs  im- 
mediately returned  the  bill  of  lading,  saying  that  they  could  not  inter- 
fere in  the  matter.  And,  after  a  long  correspondence,  they  brought 
this  action  to  recover  the  price  of  the  stores  so  supplied  by  them. 

The  jury  returned  a  verdict  for  the  plaintiffs  for  the  amount  claimed, 
£62.  10s. ;  and  the  learned  Judge  reserved  leave  to  the  defendant  to 
move  to  enter  the  verdict  for  him  if  the  Court  should  be  of  opinion 
that  there  was  no  evidence  of  an  acceptance  and  receipt  by  the  defend- 
ant of  the  goods,  to  satisfy  the  Statute  of  Frauds. 

WiGHTMAN,  J.  I  am  of  opinion  that  there  was  evidence  in  this  case 
that  the  defendant  so  dealt  with  the  goods  and  with  the  bill  of  lading 
as  to  justify  the  jury  in  finding  that  there  was  an  acceptance  and 
actual  receipt  by  him  of  the  goods,  within  the  meaning  of  the  17th 
section  of  the  Statute  of  Frauds.  The  facts  seem  to  bring  the  case 
very  much  within  the  principle  thrown  out  by  some  of  the  Judges 
in  Aleredith  v.  Meigh,  2  E.  &  B.  364  (E.  C.  L.  R.  vol.  75),  in  which  I 
entirely  concur.  Erie,  J.,  there  says :  "I  have  no  doubt  that  the  bill 
of  lading,  which  is  the  symbol  of  property,  may  be  so  received  and 
dealt  with  as  to  be  equivalent  to  an  actual  receipt  of  the  property  it- 
self." And  Crompton,  J. :  "When  goods,  or  the  indicia  of  the  prop- 
erty in  goods,  remain  long  under  the  control  of  the  vendee,  especially 
when  the  vendee  has  in  any  respect  acted  as  the  owner  of  the  goods, 
there  may  be  sufficient  evidence  of  an  acceptance  and  receipt,  although 
the  goods  themselves  are  not  received." 

In  the  present  case  the  defendant  purchases  goods  of  the  plaintiffs, 
and,  hearing  from  them  that  they  had  before  consigned  goods  to 
Messrs..  Hanson  &  Co.,  at  Constantinople,  desires  the  plaintiffs  to  make 
out  the  bill  of  lading  to  that  firm.  The  defendant  also  sent  goods  of 
his  own  to  the  plaintiffs'  warehouse,  which  were,  by  his  direction,  sent 
down  to  the  same  ship  with  the  goods  purchased  by  him  of  the  plain- 
tiffs. All  the  goods  were  put  on  board  together,  and  in  the  bill  of 
lading  those  other  goods  of  the  defendant  were  included  with  the  goods 
the  subject  of  the  present  action.  The  plaintiff's  paid  the  freight  in  the 
first  instance,  and  the  defendant  repaid  them  and  thereupon  received 
from  them  the  bill  of  lading.  This  was  in  October,  1855,  and,  after 
keeping  and  dealing  with  the  bill  of  lading  for  more  than  a  year,  the 
defendant  returned  it,  in  November,  1856,  to  the  plaintiffs  with  this 
letter :  'T  enclose  the  bill  of  lading  for  stores  sent  out  to  the  barque 
Phoenix.  Please  see  after  them.  I  think  that  the  master  of  the  steam- 
er must  account  for  them."  This  letter  seems  to  me  most  material  as 
evidence  to  shew  that  the  defendant  has  acted  as  owner  of  the  goods, 
not  only  by  keeping  the  bill  of  lading  so  long,  but  by  expressly  desir- 
ing the  plaintiffs  to  see  after  the  goods.  Drawing  the  ordinary  infer- 
ence from  all  these  facts,  I  think  that  there  was  abundant  evidence  that 
the  defendant  had  so  dealt  with  the  goods  as  to  have  accepted  and 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OP  PART  OF  GOODS         657 

actually  received  them,  within  the  dicta  in  Meredith  v.  Meigh,  2  E.  &: 
B.  364  (E.  C.  L.  R.  vol.  75),  which  are  clearly  good  law. 
Rule  discharged.^^ 


CUSACK  et  al.  v.  ROBINSON. 
(Court  of  Queen's  Bench,  1861.     1  Best  &  S.  299.) 

Declaration  for  goods  sold  and  delivered,  and  goods  bargained  and 
sold.    Plea,  never  indebted. 

At  the  trial,  before  Blackburn,  J.,  at  the  Liverpool  Winter  Assizes 
in  1860,  it  appeared  that  the  defendant,  who  was  a  London  merchant, 
on  the  24th  October,  1860,  at  Liverpool,  called  on  the  plaintift's,  who 
are  importers  of  Canadian  produce,  and  said  he  wanted  to  buy  from 
150  to  200  firkins  of  Canadian  butter.  He  then  went  with  one  of  the 
plaintiffs  to  their  cellar,  where  he  was  shewn  a  lot  of  156  firkins  of 
butter,  "Ex  Bohemian,"  belonging  to  the  plaintiffs,  which  he  then  had 
the  opportunity  of  inspecting,  and  in  fact  he  did  open  and  inspect  six 
of  the  firkins  in  that  lot.  After  that  examination,  they  went  to  another 
cellar  to  see  other  butter,  which  however  did  not  suit  the  defendant. 
At  a  later  period  of  the  same  day,  the  plaintiffs  and  the  defendant  made 
a  verbal  agreement,  by  which  the  defendant  agreed  to  buy  that  specific 
lot  of  156  firkins,  at  77s.  per  cwt.  When  the  price  had  been  agreed 
on,  the  defendant  took  a  card  on  which  his  name  and  address  in 
London  were  written  "Edmund  Robinson,  1,  Wellington  Street,  Lon- 
don Bridge,  London,"  and  wrote  on  it  "156  firkins  butter  to  be  de- 
livered at  Fenning's  Wharf,  Tooley  Street."  He  gave  this  to  the 
plaintiffs  and  at  the  same  time  said  that  his  agents,  Messrs.  Clibborn, 
at  Liverpool,  would  give  directions  how  the  goods  were  to  be  for- 
warded to  Fenning's  Wharf.  The  plaintiffs,  by  Clibborn's  directions, 
delivered  the  butter  to  Pickford's  carts  to  be  forwarded  to  the  defend- 
ant at  Fenning's  Wharf.  The  plaintiffs  sent  an  invoice,  dated  the 
25th  October,  1860,  to  the  address  on  the  defendant's  card.  They  re- 
ceived in  answer  a  letter  purporting  to  come  from  a  clerk  in  the  de- 
fendant's office,  acknowledging  the  receipt  of  the  invoice,  and  stating 
that  on  the  defendant's  return  he  would  no  doubt  attend  to  it.  There 
was  no  evidence  that  the  writer  of  this  letter  had  any  authority  to  sign 
a  memorandum  of  a  contract.  On  the  27th  October,  the  plaintiffs,  in 
Liverpool,  received  a  telegram  from  the  defendant  in  London,  in  effect 
asserting  that  the  butters  had  been  sold  by  the  plaintiffs  subject  to  a 
warranty,  that  was  equal  to  a  sample,  but  that  they  were  not  equal 
to  sample,  and  therefore  would  be  returned.  The  plaintiffs  replied 
by  telegram  that  there  was  no  such  warranty,  and  they  must  be  kept. 

2  3  Concurring  opinions  were  delivered  by  Croiupton  and  Hill,  J  J. 
Wood  w.  Sales — 42 


658  STATL'TE    OF   FRAUDS  (Ch.  8 

A  clerk  at  Fenning's  Wharf  proved  that  Messrs.  Fennings  stored 
goods  for  their  customers,  and  had  a  butter  warehouse;  that  the  de- 
fendant had  used  the  warehouse  for  fifteen  years,  and  was  in  the  habit 
of  keeping  his  butters  there  till  he  sold  them.  On  the  26th  October, 
Pickford  &  Co.  had  delivered  a  part  of  the  156  firkins  in  question  at 
the  warehouse,  and  delivered  the  residue  on  the  morning  of  the  27th 
October.  The  witness  could  not  say  whether  any  one  came  to  inspect 
them  or  not,  but  he  proved  that  they  were  delivered  up  by  Penning 
to  Pickford  &  Co.,  under  a  delivery  order  from  the  defendant  dated 
27th  October.  The  defendant's  counsel  admitted  that  it  must  be  taken 
that  the  sale  was  not  subject  to  any  warranty;  but  objected  that  the 
price  of  the  goods  exceeded  £10.,  and  that  there  was  nothing  proved 
to  satisfy  the  requisitions  of  the  Statute  of  Frauds. 

The  verdict  was  entered  for  the  plaintiffs  for  £420.  10s.  Id.,  with 
leave  to  the  defendant  to  move  to  enter  a  nonsuit,  if  there  was  no 
evidence  proper  to  be  left  to  the  jury  either  of  a  memorandum  of  the 
contract  or  of  an  acceptance  and  actual  receipt  of  the  goods. 

In  Hilary  Term,  1861,  Edward  James  obtained  a  rule  nisi  accord- 
ingly, citing  Nicholson  v.  Bower,  1  E.  &  E.  172,  which  rule  was  ar- 
gued at  the  Sittings  in  banc  after  Easter  Term,  on  the  9th  ]\Iay,  be- 
fore Hill  and  Blackburn,  Js. 

IMellish  and  Ouain  shewed  cause.  It  must  be  conceded,  on  the  part 
of  the  plaintiffs,  that  there  was  no  memorandum  of  a  contract  in  writ- 
ing to  satisfy  the  17th  section  of  the  Statute  of  Frauds,  29  Car.  II, 
c.  3,  which  enacts,  "No  contract  for  the  sale  of  any  goods,  wares,  and 
merchandises  for  the  price  of  £10.  sterling  or  upwards,  shall  be  al- 
lowed to  be  good,  except  the  buyer  shall  accept  part  of  the  goods  so 
sold,  and  actually  receive  the  same,  or  give  something  in  earnest  to 
bind  the  bargain,  or  in  part  of  payment,  or  that  some  note  or  memo- 
randum in  writing  of  the  said  bargain  be  made  and  signed  by  the  par- 
ties to  be  charged  by  such  contract,  or  their  agents  thereunto  lawfully 
authorized."  The  card  which  the  defendant  delivered  to  the  plaintiffs 
is  insufiicient  for  that  purpose,  as  it  does  not  contain  the  names  of  both 
parties  to  the  contract,  neither  does  it  state  the  price  at  which  the 
butter  was  to  be  sold. 

But  there  is  evidence  of  an  acceptance  and  actual  receipt  of  the 
goods  within  the  meaning  of  the  statute.  A  very  important  fact  in 
the  case  is,  that  the  sale  was  a  sale  of  a  specific  lot  of  156  firkins  of 
butter,  and  also  that  there  was  a  verbal  contract  for  the  sale  of  the 
butter  which  was  valid  at  common  law,  and  the  vendee  gave  directions 
that  it  should  be  sent  to  him  at  Fenning's  Wharf.  As  the  defendant 
was  in  the  habit  of  using  Fenning's  Wharf  as  his  warehouse,  his  or- 
dering certain  specific  goods  to  be  taken  there,  and  they  being  taken 
there  by  his  direction,  and  warehoused  in  the  manner  goods  received 
on  his  account  were  usually  warehoused,  vested  the  goods  in  his  actual 
possession.    If  the  goods  are  in  the  vendee's  actual  possession,  then  the 


Sec.  4)  ACCEPTANCE   AND    RECEIPT    OF    PART    OF    GOODS  659 

vendor's  right  of  Hen  for  the  price  is  destroyed.  Suppose  instead  of 
directing  the  goods  to  Fenning's  Wharf,  the  defendant  had  directed 
them  to  his  own  warehouse,  surely  that  would  have  been  ample  evi- 
dence of  an  acceptance  and  actual  receipt  to  satisfy  the  statute. 

There  is  a  distinction  between  the  cases  of  a  purchase  of  specific 
goods,  and  of  goods  which  are  in  bulk  and  not  ascertained.  Suppose 
a  man  goes  into  a  shop  and  says,  "I  buy  that  chattel ;  send  it  to  such 
a  place,  or  give  it  to  a  porter,"  and  afterwards  receives  it  and  exer- 
cises an  act  of  dominion  over  it,  he  has  done  everything  the  statute  re- 
quires to  constitute  an  acceptance  and  receipt.  At  one  time  it  was 
doubted  whether,  in  order  to  satisfy  this  clause  in  the  statute,  the  ac- 
ceptance might  not  follow  the  delivery,  but  that  doubt  has  been  re- 
moved by  Morton  v.  Tibbett,  15  Q.  B.  428  (E.  C.  L.  R.  vol.  69),  where 
this  Court  decided  that  the  acceptance  must  precede  or  be  contempo- 
raneous with  the  delivery.  That  case  is  also  an  authority  to  show  that 
the  fact  of  the  vendee  having  dealt  with  the  goods  as  owner,  is  evi- 
dence of  an  acceptance  and  receipt.  Here,  after  a  contract  respecting 
these  goods,  which  was  binding  at  common  law,  had  been  entered  into, 
the  defendant  exercised  an  act  of  dominion  over  them  by  ordering  them 
to  be  sent  to  Fenning's  Wharf,  and  to  be  warehoused  there  for  him. 

In  Elmore  v.  Stone,  1  Taunt.  458,  the  defendant  purchased  two  hors- 
es under  a  verbal  agreement  from  the  plaintifif,  and  desired  the  plain- 
tiff, who  was  a  livery-stable  keeper,  to  keep  the  horses  at  livery  for 
him,  which  the  plaintiff  agreed  to  do.  The  Court  of  Common  Pleas 
held  that  there  was  sufficient  evidence  of  a  delivery  within  the  statute. 
Chaplin  v.  Rogers,  1  East,  192,  decided  that  where  a  vendee,  after  a 
bargain  and  sale  by  parol,  deals  with  goods  as  if  they  were  in  his  ac- 
tual possession,  such  an  act  of  ownership  is  evidence  of  a  receipt  and 
acceptance  by  the  vendee.  In  Hart  v.  Bush,  E.,  B.  &  E.  494  (E.  C. 
L.  R.  vol.  96),  this  Court  held  that  a  delivery  of  goods  by  the  vendor 
to  a  wharfinger  appointed  by  the  vendee,  to  be  forwarded  by  any  ves- 
sel to  the  vendee,  would  not  constitute  an  acceptance  and  receipt  un- 
der the  statute ;  but  that  case  is  distinguishable  for  two  reasons,  first 
that  the  sale  was  not  one  of  specific  goods,  and  next  the  direction  given 
by  the  vendee  to  the  vendor  was,  that  the  goods  were  to  be  sent  to  him 
by  sea  from  a  place  called  Griffin's  Wharf,  London.  The  facts  were 
that  they  were  forwarded  from  Griffin's  Wharf  in  a  ship  selected  by  the 
wharfinger,  and  lost  before  they  reached  their  destination. 

Nicholson  v.  Bower,  E.  &  E.  172,  which  was  cited  when  the  rule 
was  moved,  will  probably  be  relied  on  by  the  other  side;  but  in  that 
case  the  vendee  purposely  suspended  the  acceptance  because  he  was 
in  insolvent  circumstances.  Meredith  v.  Meigh,  2  E.  &  B.  364  (E.  C. 
L.  R.  vol.  75),  may  perhaps  also  be  relied  on ;  but  there  the  goods 
sold  were  not  specific  goods ;  the  delivery  of  them  on  board  a  ship 
selected  by  the  vendor,  therefore,  could  in  no  way  amount  to  an  ac- 
ceptance and  receipt  by  the  vendee. 


C60  STATUTE    OF   FRAUDS  (Ch.  S 

Blackburn,  J.  (After  fully  stating  the  facts  his  lordship  pro- 
ceeded). It  was  not  contended  that  there  was  any  sufficient  memo- 
randum in  writing  in  the  present  case :  but  it  was  contended  that  there 
was  sufficient  evidence  that  the  defendant  had  accepted  the  goods  sold, 
and  actually  received  the  same;  and,  on  consideration,  we  are  of  that 
opinion. 

The  words  of  the  statute  are  express,  that  there  must  be  an  accept- 
ance of  the  goods,  or  part  of  them,  as  well  as  an  actual  receipt ;  and 
the  authorities  are  very  numerous  to  shew  that  both  these  requisites 
must  exist  or  else  the  statute  is  not  satisfied.  In  the  recent  case  of 
Nicholson  v.  Bower,  1  E.  &  E.  172,  which  was  cited  for  the  defend- 
ant, 141  quarters  of  wheat  were  sent  by  a  railway,  addressed  to  the 
vendees.  They  arrived  at  their  destination,  and  were  there  warehoused 
by  the  Railway  Company  under  circumstances  that  might  have  been 
held  to  put  an  end  to  the  unpaid  vendor's  rights.  But  the  contract 
was  not  originally  a  sale  of  specific  wheat,  and  the  vendees  had  never 
agreed  to  take  those  particular  quarters  of  wheat ;  on  the  contrary, 
it  was  shewn  to  be  usual,  before  accepting  wheat  thus  warehoused,  to 
compare  a  sample  of  the  wheat  with  the  sample  by  which  it  was  sold ; 
and  it  appeared  that  the  vendees,  knowing  that  they  were  in  embar- 
rassed circumstances,  purposely  abstained  from  accepting  the  goods, 
and  each  of  the  Judges  mentions  that  fact  as  the  ground  of  their  de- 
cision. In  ^Meredith  v.  Meigh,  2  E.  &  B.  364  (E.  C.  L.  R.  vol.  75), 
the  goods,  which  were  not  specified  in  the  original  contract,  had  been 
selected  by  the  vendor,  and  put  on  board  ship  by  the  directions  of  the 
vendee,  so  that  they  were  in  the  hands  of  a  carrier  to  convey  them 
from  the  vendor  to  the  vendee.'  It  was  there  held,  in  conformity  with 
Hanson  v.  Armitage,  5  B.  &  Aid.  557  (E.  C.  L.  R.  vol.  7),  that  the 
carrier,  though  named  by  the  vendee,  had  no  authority  to  accept  the 
goods.  And  in  this  we  quite  agree :  for  though  the  selection  of  the 
goods  by  the  vendor,  and  putting  them  in  transit,  would,  but  for  the 
statute,  have  been  a  sufficient  delivery  to  vest  the  property  in  the  ven- 
dee; it  could  not  be  said  that  the  selection  by  the  vendor,  or  the  re- 
ceipt by  the  carrier,  was  an  acceptance  of  those  particular  goods  by 
the  vendee. 

In  Baldey  v.  Parker,  2  B.  &  C.  37  (E.  C.  L.  R.  vol.  9),  which  was 
much  relied  on  by  Air.  Mihvard  in  arguing  in  support  of  this  rule, 
the  ground  of  the  decision  was  that  pointed  out  by  Holroyd,  J.,  who 
says,  p.  44:  "Upon  a  sale  of  specific  goods  for  a  specific  price,  by 
parting  with  the  possession  the  seller  parts  with  his  lien.  The  stat- 
ute contemplates  such  a  parting  with  the  possession;  and  therefore 
as  long  as  the  seller  preserves  his  control  over  the  goods,  so  as  to  re- 
tain his  lien,  he  prevents  the  vendee  from  accepting  and  receiving 
them  as  his  own,  within  the  meaning  of  the  statute."  The  principle 
here  laid  down  is  that  there  cannot  be  an  actual  receipt  by  the  vendee 
so  long  as  the  goods  continue  in  the  possession  of  the  seller,  as  un- 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         661 

paid  vendor,  so  as  to  preserve  his  lien ;  and  it  has  been  repeatedly 
recognized.  But  though  the  goods  remain  in  the  personal  possession 
of  the  vendor,  yet,  if  it  is  agreed  between  the  vendor  and  the  vendee 
that  the  possession  shall  thenceforth  be  kept,  not  as  a  vendor  but  as 
bailee  for  the  purchaser,  the  right  of  lien  is  gone,  and  then  there  is  a 
sufficient  receipt  to  satisfy  the  statute :  Marvin  v.  Wallis,  6  E.  &  B. 
726  (E.  C.  L.  R.  vol.  88),  Beaumont  v.  Brengeri,  5  C.  B.  301  (E.  C. 
L.  R.  vol.  57).  In  both  of  these  cases  the  specific  chattel  sold  was  as- 
certained, and  there  appear  to  have  been  acts  indicating  acceptance 
subsequent  to  the  agreement  which  changed  the  nature  of  the  posses- 
sion. 

In  the  present  case  there  was  ample  evidence  that  the  goods,  when 
placed  in  Fenning's  Wharf,  were  put  under  the  control  of  the  defend- 
ant to  await  his  further  directions,  so  as  to  put  an  end  to  any  right 
of  the  plaintiffs  as  unpaid  vendors,  as  much  as  the  change  in  the  na- 
ture of  the  possession  did  in  the  cases  cited.  There  was  also  sufficient 
evidence  that  the  defendant  had,  at  Liverpool,  selected  these  specific 
156  firkins  of  butter  as  those  which  he  then  agreed  to  take  as  his  prop- 
erty as  the  goods  sold,  and  that  he  directed  those  specific  firkins  to 
be  sent  to  London.  This  was  certainly  evidence  of  an  acceptance,  and 
the  only  remaining  question  is,  whether  it  is  necessary  that  the  ac- 
ceptance should  follow,  or  be  contemporaneous  with  the  receipt,  or 
whether  an  acceptance  before  the  receipt  is  not  sufficient.  In  Saun- 
ders V.  Topp,  4  Exch.  390,  which  is  the  case  in  which  the  facts  ap- 
proach nearest  to  the  present  case,  the  defendant  had,  according  to  the 
finding  of  the  jury,  agreed  to  buy  from  the  plaintiff  45  couple  of 
sheep  which  the  defendant,  the  purchaser,  had  himself  selected,  and 
the  plaintiff  had  by  his  directions  put  them  in  the  defendant's  field. 
Had  the  case  stopped  there,  it  would  have  been  identical  with  the  pres- 
ent. But  there  was,  in  addition,  some  evidence  that  the  defendant, 
after  seeing  them  in  the  field,  counted  them,  and  said  it  was  all  right, 
and,  as  this  was  some  evidence  of  an  acceptance  after  the  receipt,  it 
became  unnecessary  to  decide  wdiether  the  acceptance  under  the  stat- 
ute must  follow  the  delivery.  Parke,  B.,  from  the  report  of  his  obser- 
vations during  the  argument,  seems  to  have  attached  much  importance 
to  the  selection  of  particular  sheep  by  the  defendant,  but  in  his  judg- 
ment, he  abstains  from  deciding  on  that  ground,  though  certainly  not 
expressing  any  opinion  that  the  acceptance  must  be  subsequent  to  the 
delivery.  The  other  three  Barons — Alderson,  Rolfe,  and  Piatt — ex- 
press an  inclination  of  opinion  that  it  is  necessary,  under  the  statute, 
that  the  acceptance  should  be  subsequent  to  or  contemporaneous  with 
the  receipt;   but  they  expressly  abstain  from  deciding  on  that  ground. 

In  the  elaborate  judgment  of  Lord  Campbell  in  Morton  v.  Tibbett, 
15  O.  B.  428  (E.  C.  L.  R.  vol.  69),  in  which  the  nature  of  an  accept- 
ance and  actual  receipt  sufficient  to  satisfy  the  statute,  is  fully  ex- 
pounded ;   he  says  (p.  434),  "The  acceptance  is  to  be  something  which 


662  STATUTE    OF   FRAUDS  (Ch.  8 

is  to  precede,  or  at  any  rate  to  be  contemporaneous  with,  the  actual 
receipt  of  the  goods,  and  is  not  to  be  a  subsequent  act  after  the  goods 
have  been  actually  received,  weighed,  measured,  or  examined."  The 
intention  of  the  legislature  seems  to  have  been  that  the  contract  should 
not  be  good  unless  partially  executed,  and  it  is  partially  executed  if, 
after  the  vendee  has  finally  agreed  on  the  specific  articles  which  he  is 
to  take  under  the  contract,  the  vendor,  by  the  vendee's  directions,  parts 
with  the  possession,  and  puts  them  under  the  control  of  the  vendee 
so  as  to  put  a  complete  end  to  all  the  rights  of  the  unpaid  vendor  as 
such.  We  think,  therefore,  that  there  is  nothing  in  the  nature  of 
the  enactment  to  imply  an  intention,  which  the  legislature  has  certainly 
not  in  terms  expressed,  that  an  acceptance  prior  to  the  receipt  will  not 
suffice.  There  is  no  decision  putting  this  construction  on  the  statute, 
and  we  do  not  think  we  ought  so  to  construe  it. 

We  are,  therefore,  of  opinion  that  there  was  evidence  in  this  case 
to  satisfy  the  statute,  and  that  the  rule  must  be  discharged. 

Rule  discharged. 


PAGE  V.  MORGAN. 
(Queen's  Bench  Division,   Court  of  Appeal,  1885.  15  Q.   B.  Div.  228.) 

Appeal  from  the  judgment  of  the  Queen's  Bench  Division  refus- 
ing an  application  for  a  new  trial,,  or  to  enter  judgment  for  the  de- 
fendant. 

The  action  was  for  the  price  of  wheat,  or  in  the  alternative  for 
damages  for  nonacceptance  of  the  wheat. 

The  statement  of  defence  denied  the  contract  of  purchase,  alleged 
that  the  wheat  was  sold  by  sample,  and  the  bulk  was  not  equal  to 
the  sample,  and  set  up  non-compliance  with  the  statute  of  frauds. 

The  case  was  tried  before  Bulwer,  Q.  C,  sitting  as  commissioner 
at  the  Chelmsford  summer  assizes,  1884,  when  the  facts  were  as 
follows : 

The  defendant,  a  miller,  bought  of  the  plaintift  by  oral  contract 
through  the  plaintiff's  agent  eighty-eight  quarters  of  wheat.  The 
sale  was  by  sample.  The  wheat  was  shipped  by  the  plaintiff's  agent 
on  a  barge  for  carriage  to  the  defendant's  mill,  which  was  upon  a 
navigable  canal.  The  barge  arrived  at  the  mill  on  the  evening  of 
Tuesday  the  25th  of  March,  and  at  8  o'clock  on  the  morning  of  the 
26th  some  of  the  sacks  containing  the  wheat  were,  by  direction  of 
the  defendant's  foreman,  hoisted  up  out  of  the  barge  on  to  the  mill 
and  examined  by  him.  After  twenty-four  sacks  had  been  hoisted 
up  and  examined  the  foreman  sent  for  the  defendant,  who  came  to 
the  mill  and  inspected  the  contents  of  the  sacks  already  delivered, 
and  ordered  some  more  to  be  sent  up  for  examination,  and  after 
having  examined  thirty-eight  sacks  in  all,  he  at  9  o'clock  told  the 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         663 

barg-eman  to  send  up  no  more,  as  the  wheat,  he  said,  was  not  equal 
to  sample.  The  defendant  then  on  the  same  day  went  off  to  see  the 
plaintiff's  agent  at  a  neighbouring  market  town,  and  told  him  that 
the  wheat  was  not  equal  to  sample,  and  that  he  should  not  take  it. 
Some  days  afterwards,  the  exact  interval,  however,  was  not  stated, 
the  wheat  taken  into  the  mill  was  returned  by  defendant's  order 
to  the  barge,  which  remained  at  the  defendant's  mill  with  the  wheat 
in  it,  the  plaintiff  refusing  to  take  the  wheat  away,  for  seven  weeks 
and  until  after  action  was  brought,  when  the  wheat  was  sold  by 
the  order  of  a  judge  at  chambers,  and  the  proceeds  paid  into  court 
to  abide  the  event  of  the  action. 

The  learned  commissioner  directed  the  jury,  on  the  authority  of 
Morton  v.  Tibbett,  15  Q.  B.  428,  and  Kibble  v.  Gough,  38  L.  T.  (N. 
S.)  204,  that  there  was  evidence  of  an  acceptance  by  the  defendant 
sufficient  to  constitute  a  contract  within  the  17th  section  of  the 
statute  of  frauds,  although  the  defendant  was  not  precluded  from  re- 
jecting the  wheat  if  not  equal  to  sample.  The  jury  found  that  the 
wheat  was  equal  to  sample,  and  that  the  defendant  had  accepted 
it  within  the  meaning  of  the  17th  section  of  the  statute  of  frauds, 
and  accordingly  gave  a  verdict  for  the  plaintiff. 

A  rule  for  a  new  trial,  or  to  enter  judgment  for  the  defendant, 
was  moved  for  on  the  ground  that  there  was  no  evidence  for  the 
jury  of  an  acceptance  of  the  wheat  by  the  defendant  to  satisfy  the 
statute,  but  the  Queen's  Bench  division  (Lord  Coleridge,  C,  J.,  and 
Cave,  J.)  refused  the  application. 

Brett,  M.  R.  It  seems  to  me  that  the  case  of  Kibble  v.  Gough, 
38  L.  T.  (N.  S.)  204,  lays  down  the  governing  principle  with  regard 
to  the  question  whether  there  is  evidence  of  an  acceptance  to  satisfy 
the  17th  section  of  the  statute  of  frauds.  It  was  there  pointed  out 
that  there  must  be  under  the  statute  both  an  acceptance  and  actual 
receipt,  but  such  acceptance  need  not  be  an  absolute  acceptance ;  all 
that  is  necessary  is  an  acceptance  which  could  not  have  been  made 
except  upon  admission  that  there  was  a  contract,  and  that  the  goods 
were  sent  to  fulfill  that  contract.  Cotton,  L.  J.,  in  giving  judgment 
in  that  case,  said :  "All  that  is  wanted  is  a  receipt  and  such  an  ac- 
ceptance of  the  goods  as  shews  that  it  has  regard  to  the  contract, 
but  the  contract  may  yet  be  left  open  to  objection :  so  that  it  would 
not  preclude  a  man  from  exercising  such  a  power  of  rejection.  I 
think  that  in  this  case  enough  had  been  done  to  satisfy  the  statute." 
Now  what  had  been  done  in  that  case?  The  goods  had  been  taken 
into  the  defendant's  warehouse  and  kept  for  some  time,  though  not 
so  long  as  to  make  it  unreasonable  that  the  defendant  should  ex- 
ercise his  right  of  rejection  if  the  goods  had  not  been  according 
to  contract,  and  the  defendant  had  inspected  the  goods.  They 
therefore  had  been  delivered,  and  actual  possession  of  them  had 
been  taken,  and  they  had  been  dealt  with  by  the  defendant  for  the 
purposes  of  the  contract.    It  was  held  that  under  those  circumstanc- 


064  STATUTE    OF   FRAUDS  (Cb.  8 

es  what  had  been  done  in  respect  to  the  goods  by  the  defendant 
must  be  considered  as  having  been  done  with  regard  to  a  contract 
for  the  purchase  of  the  goods,  and  as  amounting  to  a  recognition  of 
the  existence  of  such  contract,  and  that  therefore,  though  the  de- 
fendant might  still  have  a  right  to  reject  the  goods  if  not  equal  to 
sample,  there  was  evidence  on  which  the  jury  might  find  that  the 
defendant  had  accepted  the  goods  within  the  meaning  of  the  statute. 

That  being  the  law  as  laid  down  by  that  decision,  what  was  the 
evidence  on  the  question  of  acceptance  in  the  present  case?  The 
wheat  was  sent  to  the  defendant's  mill  in  a  barge,  which  was 
brought  under  the  mill  in  the  evening.  The  next  morning  a  con- 
siderable quantity  of  wheat  was  taken  up  by  the  defendant's  serv- 
ants into  the  defendant's  mill  and  remained  there  some  time  more 
or  less  until  the  defendant  had  opened  the  sacks  and  examined 
their  contents  to  see  if  they  corresponded  with  the  sample.  How 
could  the  defendant  have  these  sacks  taken  in  to  his  mill  and  there 
opened  and  examined  without  a  recognition  of  the  existence  of  a 
contract  entitling  him  so  to  deal  with  them?  How  could  any  rea- 
sonable men  come  to  any  other  conclusion  from  his  dealing  with 
them  than  that  he  had  made  a  contract  of  purchase  with  regard 
to  them,  and  that  the  goods  were  delivered  to  and  received  by  him 
under  such  contract,  and  examined  by  him  to  see  if  they  were  ac- 
cording to  the  contract?  It  seems  to  me  clear  that  under  these  cir- 
cumstances there  was  evidence  for  the  jury  of  an  acceptance  within 
the  meaning  of  the  statute.  I  can  conceive  of  many  cases  in  which 
what  is  done  with  regard  to  the  delivery  and  receipt  of  the  goods 
may  not  afford  evidence  of  an. acceptance.  Suppose  that  goods  be- 
ing taken  into  the  defendant's  warehouse  by  the  defendant's  serv- 
ants, directly  he  sees  them,  instead  of  examining  them,  he  orders 
them,  to  be  turned  out  or  refuses  to  have  anything  to  do  with  them. 
There  would  there  be  an  actual  delivery,  but  there  would  be  no 
acceptance  of  the  goods,  for  it  would  be  quite  consistent  with  what 
was  done  that  he  entirely  repudiated  any  contract  for  the  purchase 
of  the  same» 

I  rely  for  the  purposes  of  my  judgment  in  the  present  case  on  the 
fact  that  the  defendant  examined  the  goods  to  see  if  they  agreed 
with  the  sample.  I  do  not  see  how  it  is  possible  to  come  to  any 
other  conclusion  with  regard  to  that  fact  than  that  it  was  a  dealing 
with  the  goods  involving  an  admission  that  there  was  a  contract. 
It  appears  to  me  that,  having  regard  to  the  case  of  Kibble  v. 
Gough,  38  L.  T.  (N.  S.)  204,  which  is  an  authority  binding  on  us, 
there  was  clearly  evidence  in  this  case  for  the  jury  of  an  acceptance, 
and  that  upon  such  evidence  there  was  only  one  conclusion  to  which 
they  reasonably  could  come.  The  counsel  for  the  defendant  placed 
reliance  on  the  case  of  Rickard  v.  Moore,  38  L.  T.  (N.  S.)  841.  It 
is  alleged  that  in  that  case  Lord  Bramwell  doubted  the  correctness 
of  what  he  had  said  in  the  previous  case  of  Kibble  v.  Gough.    How- 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         665 

ever  that  may  be,  it  is  quite  clear  that  that  case  cannot  overrule 
Kibble  v.  Gough. 

For  these  reasons  I  am  of  opinion  that  this  appeal  must  be  dis- 
missed.   Appeal  dismissed.^* 


SHINDLER  v.  HOUSTON. 
(Court  of  Appeals  of  New  York,  1848.     1  N.  Y.  261,  49  Am.  Dec.  316.) 

On  error  from  the  Supreme  Court.  Houston  sued  Shindler  in 
the  Justices'  Court,  of  the  city  of  Troy,  in  assumpsit,  for  the  price 
of  a  quantity  of  lumber.  The  plaintiff  having  recovered,  the  de- 
fendant appealed  to  the  Mayor's  Court  of  that  city,  and  on  the  trial 
in  that  Court,  the  case  v^as  this : 

The  plaintifif  was  the  owner  of  about  2070  feet  of  curled  maple 
plank  and  scantling,  which  he  had  brought  to  Troy  in  a  boat,  and 
which  after  being  inspected  and  measured,  was  piled  on  the  dock 
apart  from  any  other  lumber.  Soon  after  this,  the  plaintiff  and  de- 
fendant met  at  the  place  where  the  lumber  lay.  The  plaintiiT  said 
to  the  defendant,  "What  will  you  give  for  the  plank?"  The  de- 
fendant said  he  would  give  three  cents  a  foot.  The  plaintiff  then 
asked,  "What  will  you  give  for  the  scantling?"  The  defendant  re- 
plied, "One  and  a  half  cents  a  foot."  The  plaintiff  then  said,  "The 
lumber  is  yours."  The  defendant  then  told  the  plaintiff  to  get  the 
inspector's  bill  of  it,  and  carry  it  to  Mr.  House,  who  would  pay  it. 
The  next  day  the  plaintiff,  having  procured  the  inspector's  bill,  pre- 
sented it  to  House,  who  refused  to  pay  it,  on  the  ground  that  the 
instructions  he  had  received  from  the  defendant  did  not  correspond 
with  the  plaintiff's  statement  of  the  contract.  There  was  no  note 
or  memorandum  of  the  contract  in  writing,  nor  was  there  any  evi- 
dence of  a  delivery  or  acceptance  of  the  lumber,  except  as  above 
stated.  At  the  prices  agreed  on,  the  lumber  came  to  $52.51,  no  part 
of  which  was  ever  paid. 

The  Mayor's  Court  instructed  the  jury  that  if  they  were  satisfied 
that  it  was  the  intention  of  the  parties  to  consider  the  lumber  de- 
livered at  the  time  of  the  bargain,  and  that  nothing  further  was 
agreed  or  contemplated  to  be  done,  in  order  to  change  the  title  in, 
or  possession  of  the  lumber,  the  plaintiff  was  entitled  to  recover; 
that  the  sale  was  not  within  the  statute  of  frauds,  and  did  not  re- 
quire any  note  or  memorandum  in  writing,  provided  they  should 
find  from  the  evidence,  that  there  was  a  delivery  and  acceptance  of 
the  lumber  at  the  time  of  the  bargain.  The  defendant  excepted  and 
the  jury  found  a  verdict  for  the  plaintiff,  on  which  judgment  was 
rendered  in  his  favor. 

24  Concurring  opinions  were  delivered  by  Baggallay  and  Bowen,  L.  JJ. 
Compare  Taylor  v.  Smith,  2  Q.  B.  65  (1S9,3). 


666  STATUTE    OF   FRAUDS  (Ch.  8 

The  Supreme  Court,  on  writ  of  error  to  the  Mayor's  Court,  af- 
firmed the  judgment  (see  1  Denio,  48),  and  the  defendant  brings 
error  to  this  Court. 

Wright,  J.  There  being  no  note  or  memorandum  made  in  writ- 
ing, of  the  contract  or  earnest  paid,  this  is  a  case  within  the  statute 
of  frauds,  unless  there  was  an  acceptance  and  receipt  of  the  whole 
or  a  part  of  the  property  by  the  buyer.  2  R.  S.  136,  §  3.  If  there 
was  an  acceptance  shewn  sufficient  to  take  the  case  out  of  the 
operation  of  the  statute,  it  was  of  all  the  lumber,  as  it  is  not  pre- 
tended that  the  entire  property  vested  in  the  vendee  by  the  accept- 
ance and  receipt  of  a  part  thereof.  The  question,  therefore,  for  con- 
sideration upon  the  facts  proved,  is  whether  there  was  an  accept- 
ance and  receipt  of  the  lumber  by  Shindler,  the  vendee,  within  the 
intent  and  meaning  of  the  statute. 

It  is  to  be  regretted  that  the  plain  meaning  of  the  statute  should 
ever  have  been  departed  from,  and  that  any  thing  short  of  an  actual 
delivery  and  acceptance  should  have  been  regarded  as  satisfying 
its  requirements,  when  the  memorandum  was  omitted ;  but  another 
rule  of  interpretation  which  admits  of  a  constructive  or  symbolical 
delivery  has  become  too  firmly  established  now  to  be  shaker\.  The 
uniform  doctrine  of  the  cases,  however,  has  been,  that  in  order  to 
satisfy  the  statute  there  must  be  something  more  than  mere  words 
■ — that  the  act  of  accepting  and  receiving  required  to  dispense  with 
a  note  in  writing,  implies  more  than  a  simple  act  of  the  mind,  un- 
less the  decision  in  Elmore  v.  Stone,  1  Taunton-,  458,  is  an  excep- 
tion. This  case,  however,  will  be  found  upon  examination  to  be 
in  accordance  with  other  cases,  although  the  acts  and  circumstances 
relied  upon  to  shew  a  delivery  and  acceptance,  were  extremely 
slight  and  equivocal ;  and  hence  the  case  was  doubted  in  How  v. 
Palmer,  3  Barn.  &  Aid.  324,  and  Proctor  v.  Jones,  2  Carr.  &  Payne, 
534,  and  has  been  virtually  overruled  by  subsequent  decisions. 

Far  as  the  doctrine  of  constructive  delivery  has  been  sometimes 
carried,  I  have  been  unable  to  find  any  case,  that  comes  up  to  dis- 
pensing with  all  acts  of  parties,  and  rests  wholly  upon  the  memory 
of  witnesses  as  to  the  precise  form  of  words  to  shew  a  delivery  and 
receipt  of  the  goods.  The  learned  author  of  the  Commentaries  on 
American  Law  cites  from  the  Pandects  the  doctrine  that  the  con- 
sent of  the  party  upon  the  spot  is  sufficient  possession  of  a  column 
of  granite,  which  by  its  weight  and  magnitude,  was  not  susceptible 
of  any  other  delivery.  But  so  far  as  this  citation  may  be  in  opposi- 
tion to  the  general  current  of  decisions  in  the  common  law  courts 
of  England  and  of  this  country,  it  is  sufficient  perhaps  to  observe 
that  the  Roman  law  has  nothing  in  it  analogous  to  our  statute  of 
frauds.  In  Elmore  v.  Stone,  expense  was  incurred  by  direction  of 
the  buyer,  and  the  vendor,  at  his  suggestion,  removed  the  horses 
out  of  his  sale  stable  into  another,  and  kept  them  at  livery  for  him. 
In  Chaplin  v.  Rogers,  1  East,  192,  to  which  we  were  referred  on 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         6G7 

the  argument,  the  buyer  sold  part  of  the  hay,  which  the  purchaser 
had  taken  away;  thus  deaHng  with  it  as  if  it  were  in  his  actual  pos- 
session. In  the  case  of  Jewett  v.  Warren,  12  Mass.  300,  7  Am.  Dec. 
74,  to  which  we  were  also  referred,  no  question  of  delivery  under 
the  statute  of  frauds  arose.  The  sale  was  not  an  absolute  pne,  but 
a  pledge  of  the  property.  The  cases  of  Elmore  v.  Stone  and  Chap- 
lin V.  Rogers  are  the  most  barren  of  acts  indicating  delivery,  but 
these  are  not  authority  for  the  doctrine  that  words,  unaccompanied 
by  acts  of  the  parties,  are  sufiicient  to  satisfy  the  statute.  Indeed, 
if  any  case  could  be  shown  which  proceeds  to  that  extent,  and  this 
court  should  be  inclined  to  follow  it,  for  all  beneficial  purposes, 
the  law  might  as  well  be  stricken  from  our  statute  book ;  for  it 
was  this  species  of  evidence,  so  vague  and  unsatisfactory,  and  so 
fruitful  of  frauds  and  perjuries,  that  the  Legislature  aimed  to  re- 
pudiate. 

So  far  as  I  have  been  able  to  look  into  the  numerous  cases  that 
have  arisen  under  the  statute,  the  controlling  principle  to  be  de- 
duced from  them  is,  that  when  the  memorandum  is  dispensed  with, 
the  statute  is  not  satisfied  with  any  thing  but  unequivocal  acts  of 
the  parties ;  not  mere  words  that  are  liable  to  be  misunderstood 
and  misconstrued,  and  dwell  only  in  the  imperfect  memory  of  wit- 
nesses. The  question  has  been,  not  whether  the  words  used  were 
sufficiently  strong  to  express  the  intent  of  the  parties,  but  whether 
the  acts  connected  with  them,  both  of  seller  and  buyer,  were  equivo- 
cal or  unequivocal.  The  best  considered  cases  hold  that  there  must 
be  a  vesting  of  the  possession  of  the  goods  in  the  vendee,  as  abso- 
lute owner,  discharged  of  all  lien  for  the  price  on  the  part  of  the 
vendor,  and  an  ultimate  acceptance  and  receiving  of  the  property 
by  the  vendee,  so  unequivocal  that  he  shall  have  precluded  himself 
from  taking  any  objection  to  the  quantum  or  quality  of  the  goods 
sold.  Chitty  on  Contracts,  390,  and  cases  cited;  Hilliard  on  Sales, 
135,  and  cases  cited ;    10  Bing.  102,  384. 

But  will  proof  of  words  alone  shew  a  delivery  and  acceptance 
from  which  consequences  like  these  may  be  reasonably  inferred? 
Especially,  if  those  words  relate  not  to  the  question  of  delivery 
and  acceptance,  but  to  the  contract  itself?  A.  and  B.  verbally  con- 
tract for  the  sale  of  chattels,  for  ready  money ;  and  without  the 
payment  of  any  part  thereof,  A.  says,  "I  deliver  the  property  to 
you,"  or,  "It  is  yours,"  but  there  are  no  acts  shewing  a  change  of 
possession,  or  from  which  the  fact  may  be  inferred.  B.  refuses  pay- 
ment. Is  the  right  of  the  vendor  to  retain  possession  as  a  lien  for 
the  price  gone?  Or,  in  the  event  of  a  subsequent  discovery  of  a 
defect  in  the  quantum  or  quality  of  the  goods,  has  B.  in  the  ab- 
sence of  all  acts  on  his  part  shewing  an  ultimate  acceptance  of  the 
possession  concluded  himself  from  taking  any  objection?  I  think 
not.  As  Justice  Cowen  remarks  in  the  case  of  Artcher  v.  Zeh,  5 
Hill,  205:    "One  object  of  the  statute  was  to  prevent  perjury.    The 


6G8  STATUTE    OF   FRAUDS  (Ch.  8 

method  taken  was  to  have  something  done ;  not  to  rest  every  thing 
on  mere  oral  agreement."  The  acts  of  the  parties  must  be  of  such 
a  character  as  to  unequivocally  place  the  property  within  the  power, 
and  under  the  exclusive  dominion  of  the  buyer. 

This. is  the  doctrine  of  those  cases  that  have  carried  the  principle 
of  constructive  delivery  to  the  utmost  limit.  Thus,  in  Searles  v. 
Keeves,  2  Esp.  R.  598,  a  case  which  arose  at  a  period  when  the 
English  Courts  were  more  inclined  than  recently  to  allow  of  a  con- 
structive delivery  and  acceptance,  where  a  written  order  was  given 
by  the  seller  of  goods  to  the  buyer,  directing  the  person  in  whose 
care  the  goods  were  to  deliver  them,  which  order  was  presented  by 
the  buyer,  it  was  held  that  there  was  a  sufficient  deliver}^  within 
the  statute.  So,  also,  in  Hollingsworth  v.  Napier,  3  Caines,  182,  2 
Am.  Dec.  268,  where  the  vendor  delivered  to  his  vendee  a  bill  of 
parcels  for  goods  lying  in  a  public  store,  together  with  an  order  on 
the  store  keeper  for  their  delivery,  and  the  vendee,  upon  delivering 
the  order  demanded  the  goods,  which  were  turned  out  to  him,  and 
he  paid  the  amount  of  the  storage,  marked  the  bales  with  his  ini- 
tials, and  returned  them  to  the  custody  of  the  store  keeper,  it  was 
held  that  the  statute  was  satisfied. 

But  in  cases  like  these,  it  would  seem  now  to  be  necessary,  that 
the  party  having  the  custody  of  the  goods,  and  who  is  the  agent  of 
the  vendor,  should  recognize  the  order  given  to  the  purchaser,  and 
assent  to  retain  the  goods  for  him.  A  delivery  to  the  vendee  of  the 
key  of  the  warehouse  in  which  the  goods  are  lodged,  or  other  indicia 
of  property,  where  goods  are  ponderous  and  incapable  of  being 
handed  over  from  one  to  another,  was  said  by  Lord  Kenyon,  in 
Chaplin  v.  Rogers,  1  East,  194,  to  be  tantamount  to  an  actual  de- 
livery. In  Dodsley  v,  Varley,  12  Adol.  &  Ellis,  632,  which  was  an  ac- 
tion of  assumpsit  for  wool  bargained  and  sold,  the  Court  said :  "We 
think  that  upon  the  evidence,  the  place  to  which  the  wool  was  re- 
moved may  be  considered  as  the  defendant's  warehouse,  and  that 
he  was  in  actual  possession  of  it  as  soon  as  it  was  weighed  and 
packed."  In  these  cases,  and  in  a  large  number  of  others  that 
might  be  cited,  the  circumstances  were  unequivocal  to  shew,  not 
merely  a  delivery  to  and  acceptance  of  the  property  in  the  goods, 
but,  what  is  always  essential,  a  complete  acceptance  of  the  posses- 
sion, by  the  buyer.  The  facts  were  more  or  less  strong  in  the  sev- 
eral cases,  but  the  acts  of  the  parties  can  scarcely  be  reconciled  with 
any  other  presumption. 

On  the  other  hand,  where  the  acts  of  the  buyer  are  equivocal,  and 
do  not  lead  irresistibly  to  the  conclusion  that  there  has  been  a  trans- 
fer and  acceptance  of  the  possession,  the  cases  qualify  the  inference 
to  be  drawn  from  them,  and  hold  the  contract  to  be  within  the  stat- 
ute. In  Baldy  v.  Parker,  2  B.  &  C.  ZJ ,  A.  purchased  of  B.,  a  trader, 
several  articles,  amounting  in  the  whole  to  £70.  A.  marked  with  a 
pencil  some  of  the  articles,  saw  others  marked,  and  helped  to  cut 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS 


669 


off  others.  He  then  requested  that  a  bill  of  the  goods  might  be 
sent  to  him,  which  was  done,  together  with  the  goods,  but  he  de- 
clined to  accept  them.  It  was  held  that  there  was  no  delivery  and 
acceptance  to  take  the  case  out  of  the  statute ;  and  Lord  C.  J.  Ab- 
bott, in  speaking  of  the  exception  in  the  statute,  justly  remarked 
that :  "It  would  be  difficult  to  find  words  more  distinctly  denoting 
an  actual  transfer  of  the  article  from  the  seller,  and  an  actual  tak- 
ing possession  of  it  by  the  buyer." 

In  Carter  v.  Touissant,  5  B.  &  Aid.  855,  the  circumstances  were, 
that  a  horse  was  sold  by  verbal  contract,  but  no  time  fixed  for  the 
payment  of  the  price.  The  horse  was  to  remain  with  the  vendor 
for  twenty  days,  without  charge  to  the  vendee.  At  the  expiration 
of  that  time  he  was  sent  to  grass  by  order  of  the  vendee,  and  en- 
tered as  one  of  the  vendor's  horses.  The  Court  held  that  there  was 
no  acceptance  of  the  horse  by  the  vendee  within  the  meaning  of  the 
statute. 

In  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680,  A.  agreed  to  pur- 
chase a  horse  from  B.  for  cash,  and  take  him  away  within  a  cer- 
tain time.  About  the  expiration  of  that  time  A,  rode  the  horse,  and 
gave  directions  as  to  his  treatment,  etc.,  but  requested  that  he 
might  remain  in  the  possession  of  B.  for  a  further  time,  at  the  ex- 
piration of  which  time  he  promised  to  take  and  pay  for  the  horse, 
to  which  B.  assented.  The  horse  died  before  A.  paid  the  price  or 
took  it  away.  It  was  held  that  there  was  no  sufficient  acceptance 
of  the  horse  to  render  the  vendee  liable  for  the  price. 

In  Howe  v.  Palmer,  3  B.  &  Al.  321,  a  vendee  publicly  agreed  at 
a  public  market,  with  the  agent  of  the  vendor,  to  purchase  twelve 
bushels  of  tares,  (then  in  the  vendor's  possession  constituting  part 
of  a  larger  quantity  in  bulk,)  to  remain  in  the  vendor's  possession 
until  called  for.  The  agent,  on  his  return  home,  measured  and  set 
apart  the  twelve  bushels.  It  was  held  that  in  this  case  there  had 
been  no  acceptance,  and  the  action  would  not  lie. 

In  Kent  v.  Huskisson,  3  B.  &  P.  233,  A.  verbally  ordered  from 
B.  a  bale  of  sponge,  which  was  sent.  The  bale  was  opened  and 
examined,  and  the  sponge  returned  by  B.,  who  at  the  same  time 
wrote  a  letter  to  A.,  stating  that  he  disapproved  thereof.  It  was 
held  that  B.  had  not  accepted  the  goods. 

In  Proctor  v.  Jones,  2  Car.  &  P.  532,  it  was  said  that  the  marking 
of  casks  of  wine,  sold  by  parol,  and  lying  at  the  London  docks,  with 
the  initials  of  the  purchaser,  at  his  request  and  in  his  presence,  was 
not  a  sufficient  acceptance  within  the  statute,  at  least  if  the  time 
of  payment  had  not,  when  the  casks  were  so  marked,  been  fixed. 

In  Bailey  v.  Ogden,  3  John.  399,  3  Am.  Dec.  509,  an  agreement 
with  the  vendor,  on  a  parol  contract  for  the  sale  of  goods,  about 
the  storage  of  the  goods,  and  the  delivery  by  him  of  the  export  en- 
try to  the  agent  of  the  vendor,  were  held  not  to  be  sufficiently  cer- 


670  STATUTE    OP   FRAUDS  (Cll.  8 

tain  to  amount  to  a  constructive  delivery,  or  to  afford  an  indiciun: 
of  ownership. 

Other  comparatively  recent  English  and  American  cases  might  be 
cited  shewing,  as  has  been  said  by  Mr.  Justice  Coleridge,  that  "the 
tenor  of  modern  decisions  is  to  give  to  the  words  of  the  statute  their 
fullest  effect,  and  not  to  allow  (so  far  as  it  is  possible)  of  any  con- 
structive deliveries  and  acceptances." 

I  think  I  may  affirm  with  safety  that  the  doctrine  is  now  clearly 
settled,  that  there  must  not  only  be  a  delivery  by  the  seller,  but  an 
ultimate  acceptance  of  the  possession  of  the  goods  by  the  buyer, 
and  that  this  delivery  and  acceptance  can  only  be  evinced  by  un- 
equivocal acts  independent  of  the  proof  of  the  contract.  But  if  the 
principles  to  be  deduced  from  the  recent  decisions  were  otherwise, 
I  should  not  be  disposed,  in  the  face  of  the  plain  and  obvious  mean- 
ing of  the  statute,  to  follow  them.  The  statute  of  frauds  of  29  Car. 
II,  (and  it  is  in  substance  re-enacted  in  this  State,)  was  justly  pro- 
nounced, nearly  half  a  century  since,  by  an  eminent  British  Judge, 
"one  of  the  wisest  laws  in  the  statute  book."  Its  provisions  apply 
with  singular  wisdom  and  beneficence,  "to  the  daily  contracts  and 
practical  aff'airs  of  mankind,"  relieving  them  of  vagueness  and  un- 
certainty, and  checking,  to  some  extent,  "the  restless  and  reckless 
spirit  of  litigation." 

Whilst  this  meritorious  law  is  in  the  statute  book,  it  is  our  busi- 
ness to  enforce  it  in  good  faith,  and  according  to  its  plain  letter  and 
spirit,  without  studying  to  fritter  away  its  vitality  in  the  attempt 
to  uphold  contracts  which  by  its  provisions  are  clearly  void. 

I  am  of  the  opinion  that  the  judgment  of  the  Supreme  Court 
should  be  reversed. 

Judgment  reversed.^* 


RODGERS  et  al.  v..  PHILLIPS  et  al. 

(Court  of  Appeals  of  New  York,  1869.     40  N.  Y.  519.) 

This  action  was  brought  to  recover  the  purchase  price  of  188  tons 
of  coal,  amounting  to  the  sum  of  $65L30.  The  coal  was  contracted 
to  be  sold  by  the  plaintiffs  to  the  defendants  by  an  oral  agreement, 
entered  into  prior  to  the  26th  day  of  June,  1858.  By  the  terms  of  this 
agreement,  it  was  to  be  shipped  on  board  a  boat  at  Richmond,  in  the 
State  of  Pennsylvania,  for  the  defendants,  and  to  be  carried  from 
there  to  Twenty-Eighth  street,  on  the  East  River,  in  the  city  of  New 
York ;  the  defendants  paying  the  freight  for  the  same.     The  coal  was 

25  Concurring  opinions  were  delivered  by  Gardiner  and  Bronson,  JJ.  Opin- 
ions in  favor  of  affirming  the  judgment  were  delivered  bv  Jewett,  C.  J.,  and 
Gray.  J. 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         671 

shipped  by  the  plaintiffs  on  board  the  coal  boat,  I.  K.  Smith,  at  Rich- 
mond, for  the  defendants,  on  Saturday,  the  26th  day  of  June,  1858; 
and  a  bill  of  lading  taken  from  the  master  by  which  the  coal  was  to  be 
delivered  at  Twenty-Eighth  street,  on  the  East  River  side  of  the  city 
of  New  York,  to  the  defendants,  upon  the  payment  of  the  freight 
by  them.  During  the  afternoon  of  the  day  when  the  coal  was  laden 
upon  the  boat,  she  commenced  leaking,  and  finally  sank  on  the  morn- 
ing of  the  following  day.  The  boat  and  cargo  remained  in  the  water, 
where  they  sank,  until  they  were  finally  removed  by  the  public  au- 
thorities as  obstructions  to  navigation.  On  Alonday,  the  28th  of  June, 
1858,  the  plaintiffs,  who  kept  their  office  at  the  city  of  New  York,  re- 
ceived the  bill  of  lading  by  mail ;  and  on  the  same  day  they  sent  it 
with  an  invoice  of  the  coal  to  the  defendants'  office.  The  invoice  con- 
sisted of  an  unsubscribed  bill  of  the  coal.  On  Tuesday,  the  29th,  the 
defendant  Oakley,  together  with  Mr.  Harriott,  the  secretary  of  the 
Brevoort  Insurance  Company,  called  at  the  plaintift''s  office,  and  in- 
quired of  Mr.  Rodgers,  one  of  the  plaintiffs,  concerning  the  condition 
of  the  boat,  how  she  had  sunk,  the  cost  of  raising  her,  and  what  he 
could  do  it  for.  He  answered  that  he  could  give  no  information  in 
regard  to  the  matter.  Another  witness,  Hubbard,  who  was  present  at 
the  same  interview,  stated  that  he  understood  from  the  conversation, 
that  Harriott  was  to  go  to  Philadelphia  to  see  about  raising  the  vessel. 
The  next  day  but  one  succeeding  this  interview,  which  was  the  1st 
day  of  July,  the  defendants  sent  back  the  bill  of  lading  to  the  plain- 
tiffs ;  and  they  returned  it  to  the  defendants  the  same  day  in  a  let- 
ter, saying  that  they  had  nothing  to  do  with  it.  Upon  this  evidence, 
the  defendants  moved  for  a  nonsuit,  on  the  ground  that  no  valid  sale 
was  established  under  the  statute  of  frauds.  The  motion  was  denied, 
and  the  defendants  excepted. 

In  addition  to  proving  the  condition  of  the  boat  at  the  time  the  coal 
was  placed  on  board  of  her,  and  the  manner  of  her  sinking,  the  defend- 
ants proved  by  the  defendant,  Oakley,  that  he  was  a  director  in  the 
Brevoort  Insurance  Company,  and  that,  on  the  receipt  of  the  bill  of 
lading,  he  went  to  the  office  of  that  company  and  tried  to  effect  an  in- 
surance on  the  coal.  The  insurance  was  refused  on  the  ground  that 
the  boat  was  rated  on  the  company's  books  as  twelve  years  old,  and 
notoriously  rotten.  After  hearing  of  the  sinking  of  the  boat,  Harriott, 
who  went  to  the  plaintiff's  office  with  the  defendant,  Oakley,  on  Tues- 
day, went  to  Philadelphia  and  attended  to  the  matter.  What  he  did, 
beyond  inquiring  into  the  condition  of  the  boat,  was  not  made  to  ap- 
pear. The  proofs  were  thereupon  closed ;  and  the  court  refused  to 
allow  the  defendants'  counsel  to  go  to  the  jury  on  the  questions  of 
fact  involved  in  the  case,  on  the  ground  that  the  defendants  had  failed 
to  make  out  any  defence  to  the  action,  and  directed  a  verdict  for  the 
plaintiffs.  The  defendants  excepted  to  the  decision  and  direction  of 
the  court. 


672  STATUTE    OF    FRAUDS  (Ch.  8 

Upon  the  hearing  of  the  exceptions,  at  the  General  Term,  judgment 
was  directed  for  the  plaintiffs ;  and  when  that  was  entered  the  defend- 
ants appealed  to  this  court. 

Daniels,  J.  A  large  portion  of  the  evidence  contained  in  the  case 
was  given  upon  the  trial  for  the  purpose  of  showing  that  the  plaintiffs 
had  negligently  misconducted  themselves  in  lading  the  coal  upon  an 
unsafe  and  unseaworthy  vessel ;  and  that  in  consequence  of  that  mis- 
conduct the  coal  had  been  lost.  This  defense  was  properly  rejected 
by  the  court,  for  the  reason  that  it  had  not  been  set  forth  in  the  an- 
swer. 

The  disposition  which  should  now  be  made  of  the  controversy  will 
therefore  depend  entirely  upon  the  sufficiency  of  the  evidence  given 
upon  the  trial  to  establish  the  fact  that  the  coal  had  been  delivered  to 
and  accepted  by  the  defendants.  The  contract  for  the  sale  of  it  was 
within  the  statute  of  frauds ;  and  on  that  account,  as  it  was  not  in 
writing,  and  nothing  had  been  paid  upon  it  by  the  direct  terms  of  that 
statute  it  was  void.  Although  the  plaintiffs  did  perform  all  that  would 
have  been  requisite  to  transfer  the  title  to  the  coal  to  the  purchasers, 
under  the  well-established  rule  of  the  common  law,  it  does  not  fol- 
low that  what  they  did  would  be  attended  with  the  same  result  under 
the  rule  prescribed  by  the  statute.  Where  a  valid  and  subsisting  con- 
tract for  the  sale  of  personal  property  may  be  shown  to  exist,  and  by 
its  terms  the  property  is  to  be  shipped  by  the  vendor  to  the  vendee, 
then  a  delivery  of  it  to  a  responsible  carrier  for  the  vendee,  to  be 
carried  and  delivered  to  him,  will  ordinarily  transfer  the  title  to  the 
vendee  and  place  the  property  at  his  risk. 

But  this  rule  requires  that  the  contract  between  the  parties  shall 
be  at  the  time  legal,  valid  and  subsisting.  It  does  not  include  cases 
like  the  present  one,  where  on  account  of  a  failure  to  comply  with  the 
positive  rule  prescribed  by  the  statute,  the  contract  is  void,  and  must 
remain  so  until  some  act  has  been  performed  that  will  have  the  effect 
of  giving  it  legal  validity.  In  cases  like  the  present  one,  it  is  the  stat- 
ute, and  not  the  common  law,  that  has  provided  the  mode  by  which 
the  previously  void  agreement  could  be  rendered  legal  and  binding 
upon  the  parties.  And  that  mode  must  be  pursued;  otherwise  the 
agreement  must  remain  without  any  binding  force  upon  either  of  the 
parries.  Until  that  may  be  done,  the  contract  must  remain  entirely 
optional  on  the  part  of  each  of  the  parties.  Even  if  the  vendors 
elected  to  perform  it,  and  deliver  the  property  precisely  as  they  had 
agreed  to,  it  was  still  optional  with  the  vendees  whether  they  would 
receive  it  or  not.  And  even  if  the  former  went  so  far  as  to  actually 
deliver  it,  the  vendees  still  had  their  election  to  either  receive  or  re- 
fuse it. 

This  resulted  from  the  unequivocal  terms  made  use  of  in  the  stat- 
ute. They  required  that  the  vendees  under  such  a  contract  as  was 
shown  upon  the  trial  of  this  cause,  should  not  only  receive,  but  in  ad- 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OP  PART  OP  GOODS         G73 

dition  tO'  that  accept  part  of  the  property  contracted  to  be  sold  to 
them,  in  order  to  render  the  contract  binding  upon  them  in  law. 
Where  the  contract,  or  a  note  or  memorandum  of  it  has  not  been  re- 
duced to  writing  and  subscribed  by  the  parties  to  be  charged  by  it, 
and  no  part  of  the  purchase  price  has  been  paid,  then  the  statute  de- 
clares it  to  be  void  where  the  price  amounts  to  the  sum  of  $50  or  up- 
wards, unless  "the  buyer  shall  accept  and  receive  part  of  such  goods." 
3  R.  S.  (5th  Ed.)  222,  subd.  2  of  §  3.  This  statute  is  in  substance  the 
same  as  the  previously  existing  English  statute,  and  they  have  both 
been  regarded  as  identical  in  the  change  they  have  produced  in  the 
common-law  rule. 

By  the  construction  they  have  received,  and  which  their  language 
manifestly  required,  a  mere  delivery  of  the  property  contracted  to  be 
sold  by  the  terms  of  the  void  contract  has  been  held  to  be  insufficient 
to  vest  the  title  to  it  in,  or  place  it  at  the  risk  of,  the  vendee.  But 
beyond  that,  it  became  necessary,  under  the  rule  adopted  by  the  stat- 
ute, that  some  part  of  the  property  should  not  only  be  delivered  and 
received  by  the  vendee,  but  that  it  should  also  be  accepted  by  him. 
This  acceptance  of  it  involved  something  more  than  the  act  of  the 
vendor  in  the  delivery.  It  required  that  the  vendee  should  also  act, 
and  that  his  act  should  be  of  such  a  nature  as  to  indicate  that  he  re- 
ceived and  accepted  the  goods  delivered  as  his  property.  He  must  re- 
ceive and  retain  the  articles  delivered,  intending  thereby  to  assume 
the  title  to  them  to  constitute  the  acceptance  mentioned  in  the  statute ; 
when  that  has  been  done,  then  for  the  first  time  the  void  contract  be- 
comes valid  and  obligatory  upon  the  parties  to  it. 

This  rule  of  construction  was  adopted  at  an  early  day  by  the  Eng- 
Hsh  courts.  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680;  5  E.  C.  L. 
419;  Carter  v.  Toussaint,  5  Barn.  &  Aid.  855;  Baldey  v.  Parker,  2 
Barn.  &  Cress.  37,  9  E.  C.  L.  16,  17.  And  since  then  it  has  been  ap- 
proved and  applied  by  this  court  to  the  statute  existing  upon  this  sub- 
ject in  this  State.  Shindler  v.  Houston,  1  N.  Y.  261,  265,  49  Am. 
Dec.  316.  In  the  decision  of  that  case.  Judge  Gardner  stated  the  Eng- 
lish rule  as  requiring  that  "there  must  be  a  delivery  by  the  vendor, 
with  an  intention  of  vesting  the  right  of  possession  in  the  vendee, 
and  there  must  be  an  actual  acceptance  by  the  latter  with  the  intent 
of  taking  possession  as  owner."  He  then  adds:  "This,  I  apprehend, 
is  the  correct  rule,  and  it  is  obvious  that  it  can  only  be  satisfied  by 
something  done  subsequent  to  the  sale  unequivocally  indicating  the 
mutual  intentions  of  the  parties."  Judge  Wright  said  "that  the  acts 
of  the  parties  must  be  of  such  a  character  as  to  unequivocally  place 
the  property  within  the  power  and  under  the  exclusive  dominion  of 
the  buyer."  Where  the  acts  of  the  buyer  are  equivocal,  and  do  not 
lead  irresistibly  to  the  conclusion  that  there  has  been  a  transfer  and 
acceptance  of  the  possession,  the  cases  qualify  the  inference  to  be 
Wo  ODw.  Sales — 43 


674  STATUTE    OF   FRAUDS  (Ch.  8 

drawn  from  them,  and  hold  the  contract  to  be  within  the  statute.  Id. 
210,  211.  And  to  this  effect  is  the  case  of  Denny  v.  Williams,  5 
Allen  (Mass.)  1.  This  it  will  be  perceived  is  very  decided  language, 
but  no  more  so,  certainly,  than  was  used  in  the  enactment  of  the 
statute  to  which  it  was  applied.  And  it  was  afterward  followed  and 
again  applied  in  deciding  the  case  of  Brabin  v.  Hyde,  32  N.  Y.  519. 

The  question  in  this  case  therefore  is  whether  such  an  acceptance 
of  the  coal  by  the  defendants  was  shown  as  placed  it  at  their  risk  at 
the  time  when  it  was  lost  by  the  sinking  of  the  vessel  it  was  laden 
upon.  And  for  the  purpose  of  considering  and  deciding  it,  this  case 
must  be  distinguished  from  those  where  the  property  contracted  to 
be  sold  was  delivered  to  a  particular  carrier  designated  and  selected 
by  the  vendee  for  the  purpose  of  receiving  and  accepting  it.  For  in 
those  cases  the  carrier,  by  the  act  of  the  vendee,  became  his  agent  and 
bound  him  by  the  receipt  and  acceptance  of  the  property.  Dawes  v. 
Peck,  8  T.  R.  330;  Waldron  v.  Romaine,  22  N.  Y.  368;  Bushell  v. 
Wheeler,  15  Ad.  &  Ell.  (N.  S.)  442. 

This  case  differs  from  those  in  the  circumstance  that  no  such  desig- 
nation or  selection  was  made  by  the  defendants.  The  carrier  to  whom 
the  property  was  delivered,  to  be  carried  to  the  defendants,  was  se- 
lected by  the  plaintiffs.  The  defendants  in  no  manner  authorized  or 
participated  in  it,  beyond  the  void  authority  conferred  by  the  terms  of 
their  void  contract.  Being  void,  as  it  was,  the  plaintiffs  could  not 
avail  themselves  of  its  terms,  for  the  purpose  of  binding  or  conclud- 
ing the  defendants  by  what  they  did  under  it.  W'hatever  they  did  to- 
ward the  performance  of  the  contract  they  did  for  themselves,  and 
at  their  own  risk,  until  the  defendants  elected  to  change  the  risk,  and 
did  change  it,  by  the  acceptance  of  the  property  mentioned  in  the 
statute ;  what  the  evidence  showed  was  a  selection  of  the  carrier  by 
the  plaintiffs,  and  a  delivering  of  the  coal  to  him,  not  an  acceptance 
of  it  by  the  defendants.  That  acceptance  required  some  act  on  the 
part  of  the  vendees,  to  constitute  it,  performed  after  the  coal  had 
been  separated  from  the  mass  and  placed  in  such  a  condition  as  ren- 
dered that  particular  quantity  capable  of  being  accepted  by  the  de- 
fendants. 

The  evidence  not  only  failed  to  show  the  performance  of  any 
act  of  acceptance  on  the  part  of  the  defendants,  but  beyond  that,  it 
appeared  that  they  did  not  hear  of  its  shipment  until  the  vessel  it  was 
laden  upon  had  sunk  to  the  bottom  of  the  Schuylkill.  There  was  noth- 
ing therefore  in  the  case  from  which  the  defendants  could  be  deemed 
to  have  accepted  the  coal  at  that  time.  It  consequently  continued  to 
be  the  plaintiffs'  property,  remaining  at  their  risk,  and  it  was  their 
loss  when  the  vessel  sunk,  after  it  had  been  laden  on  board  of  her. 
And  if  the  carrier  became  liable  for  the  loss,  his  liability  was  to  the 
plaintiffs,  not  to  the  defendants.  That  a  mere  delivery  of  property 
to  a  carrier  selected  to  receive  and  carry  it  by  the  vendors  will,  in  no 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OP  GOODS         675 

legal  sense,  constitute  an  acceptance  of  it  by  the  vendee,  and  for  that 
reason  exclude  the  case  from  the  operation  of  the  statute,  has  been 
distinctly  held  in  several  adjudged  and  well-considered  decisions. 

This  point  was  directly  presented  in  the  case  of  Maxwell  v.  Brown, 
39  Me.  98,  63  Am.  Dec.  605  ;  and  after  an  examination  and  reference 
to  the  English  authorities,  the  court  held  that  the  delivery  to  the  car- 
rier was  insufficient  to  show  an  acceptance  by  the  vendee.  The  same 
point  arose,  under  slightly  different  circumstances,  in  the  case  of 
Frostburg  Min.  Co.  v.  New  Eng.  Glass  Co.,  9  Cush.  (Mass.)  115;  and 
it  was  disposed  of  in  the  same  way.  And  a  delivery  to  a  carrier  se- 
lected by  the  vendor  for  the  transportation  of  the  property,  where  that 
was  done  in  conformtiy  to  the  terms  of  the  void  contract,  was  held 
to  be  in  no  sense  an  acceptance  by  the  vendee,  in  the  cases  of  Hanson 
V.  Armitage,  7  Eng.  C.  L.  191,  Acebal  v.  Levy,  25  Eng.  C.  L.  180, 
Meredith  v.  Meigh,  75  Eng.  C.  L.  363,  Coats  v.  Chaplin,  43  Eng.  C. 
L.  831,  Norman  v.  Phillips,  14  Mees.  &  Welsh.  278,  Farina  v.  Home, 
16  Mees.  &  Welsh.  119,  Coombs  v.  Bristol,  etc.,  Ry.  Co.,  3  Hurlst.  & 
Norm.  510,  and  Hart  v.  Bush,  1  Ell,  Bl.  &  Ell.  494;  and  the  cases 
of  Howe  V.  Palmer,  5  Eng.  C.  L.  303,  Bentall  v.  Brewer,  10  Eng.  C. 
L.  138,  Hunt  v.  Hecht,  20  Eng.  Law  &  Eq.  524,  Holmes  v.  Haskins, 
28  Eng.  Law  &  Eq.,  564,  and  Castle  v.  Sworder,  5  Hurlst.  &  Norm. 
281.  though  differing  in  their  circumstances,  are  in  substance  to  the 
same  effect. 

Vp  to  the  time  when  the  coal  was  lost  by  the  sinking  of  the  vessel 
having  it  on  board,  no  act  was  performed  by  the  defendants,  from 
which  it  could  be  even  colorably  claimed  that  they  had  accepted  the 
coal  or  become  invested  with  the  title  to  it.  For  it  was  not  until  the 
day  afterwards  that  the  invoice  and  bill  of  lading  were  delivered  to 
them ;  and  then  the  rights  of  the  parties  had  become  fixed  by  the  loss 
of  the  property.  The  loss  was  then  that  of  the  plaintiffs,  and  nothing 
afterwards  transpired  warranting  the  conclusion  that  the  defendants 
intended  to  shift  it  and  impose  it  upon  themselves. 

Assuming,  as  it  may  properly  be  done,  that  the  acceptance  of  the 
bill  of  lading  by  the  defendants,  under  ordinary  circumstances,  would 
have  been  equivalent  to  the  acceptance  of  the  property  mentioned  in 
it,  yet  that  could  not  be  the  eft'ect  of  it  where,  as  in  this  case,  the 
property  had  been  previously  lost.  Certainly  not,  unless  the  accept- 
ance was  made  with  knowledge  of  the  circumstances  affecting  the 
propriety  of  it  existing  at  the  time  it  occurred. 

But  even  if  it  could  have  produced  that  result,  something  more 
would  have  to  be  shown,  for  the  purpose  of  establishing  the  accept- 
ance than  was  done  upon  the  trial  of  this  action.  What  transpired 
when  the  bill  of  lading  was  left  at  the  defendants'  office  was  not 
made  to  appear.  All  that  was  shown  upon  the  subject  of  an  accept- 
ance of  it  was  that  one  of  the  defendants,  after  its  receipt,  applied  for 
an  insurance  upon  the  coal,  and  failed  to  procure  it  on  account  of 


676  STATUTE    OF   FRAUDS  (Ch.  S 

the  unseaworthy  character  of  the  vessel  upon  which  the  plaintiff  had 
placed  it.  This  was  clearly  insufficient  for  that  purpose  because  it  did 
not  show  that  the  defendants  had  dealt  with  the  property  as  their 
own,  but  merely  that  they  had  attempted  to  do  so  and  failed.  What 
they  did  in  this  respect  was  done  before  they  had  received  any  intel- 
ligence of  the  misfortune  to  the  property.  And  even  if,  prior  to  that 
time,  they  had  determined  to  accept  the  shipment  by  accepting  the  bill 
of  lading,  upon  the  supposition  and  belief  that  the  property  was  then 
afloat,  they  became  at  liberty  to  rescind  their  determination  and  re- 
fuse to  receive  it,  as  soon  as  they  discovered  that  it  had  been  found 
under  a  mistake  of  a  material  fact  affecting  it. 

When  that  fact  was  discovered,  an  interview  took  place  between 
one  of  the  defendants  and  one  of  the  plaintiffs,  but  nothing  was  set- 
tled by  what  then  occurred.  After  that  'Mr.  Harriott  was  sent  to 
Philadelphia  by  the  defendants,  and  he  testified  that  he  attended  to 
the  matter.  But  what  he  did  beyond  inquiring  into  the  condition  of 
the  boat  was  neither  stated  by  himself  nor  by  any  other  witness. 
Neither  of  these  circumstances,  nor  all  of  them  combined,  so  far  tended 
to  prove  an  acceptance  of  the  property  as  to  justify  the  court  in  leav- 
ing that  fact  to  the  consideration  and  decision  of  the  jury.  When  the 
additional  circumstance  is  borne  in  mind,  that  on  Thursday  of  the 
same  week,  the  defendants  sent  back  the  bill  of  lading  to  the  plain- 
tiff's, it  will  be  perceived  that  there  was  absolutely  nothing  from  which 
an  acceptance  of  the  property  shipped  could  be  even  plausibly  main- 
tained. 

At  the  time  the  bill  of  lading- was  delivered  to  them,  they  had  a  rea- 
sonable time  after  ascertaining  the  circumstances  in  which  to  deter- 
mine whether  they  would  accept  or  reject  it,  the  same  as  they  would 
have  had  upon  an  actual  delivery  of  the  property  itself,  for  which  the 
bill  was  merely  a  substitute.  Within  that  time  they  rejected  and  re- 
turned it  to  the  plaintiff's,  which  plainly  left  the  transaction  invalid  as 
a  sale,  under  the  direct  prohibition  of  the  statute.  In  this  respect 
the  case  had  no  more  foundation  for  its  support  than  Xorman  v. 
Phillip,  Farina  v.  Home,  and  Coats  v.  Chapin,  supra,  and  Bill  v.  Ba- 
ment,  9  Mees.  &  Welsh.  33  had,  in  which  it  was  held  that  no  accept- 
ance of  the  property  by  the  buyer  could  be  inferred. 

The  court  at  the  trial  erred  in  refusing  to  nonsuit  the  plaintiffs 
and  in  directing  a  verdict  against  the  defendants.  The  judgment 
should  be  reversed  and  a  new  trial  ordered.-^ 

26  Woodruff,  J.,  also  delivered  an  opinion  for  reversal,  in  the  course  of 
which  he  said :  "It  has  sometimes  been  argued  that  delivery  to  a  carrier 
designated  by  a  buyer  will  suffice  to  .satisfy  the  statute,  although  delivering 
to  a  general  carrier  will  not :  but  this  distinction  cannot  be  sustained  where 
the  carrier  has  no  other  authority  than  to  transport  the  goods.  In  Aceba  v. 
Levy,  10  Bing.  376,  the  delivery  was  on  board  a  sliip  chartered  by  the  buyer, 
and  yet  it  was  not  held  to  constitute  an  acceptance  within  the  statute;  and 
see,  also,  Meredith  v.  Meigh  et  ah,  2  Ellis  &  Bl.  3Gi." 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         677 

DIERSON  V.  PETERSMEYER. 

(Supreme  Court  of  Iowa,  1S99.    109  Iowa,  233,  80  N.  W.  389.) 

Action  for  pop  corn  sold  and  delivered.  From  judgment  on  ver- 
dict directed  for  the  defendant,  the  plaintifif  appeals. 

Ladd,  J.  The  pop  corn  was  in  the  crib  when  examined  by  the  de- 
fendant, and  he  agreed  to  pay  50  cents  per  100  poimds  for  it,  sorted, 
sewed  in  bags,  and  delivered  at  Odebolt.  Four  loads  were  hauled 
to  that  place,  and  defendant  directed  the  plaintiff  to  drive  to  a  car 
as  soon  as"  others  had  unloaded.  One  load  was  weighed  on  defend- 
ant's scales,  and  then  taken  to  the  car.  The  defendant  cut  open  two 
sacks,  examined  the  corn,  and  refused  to  take  it  because  not  prop- 
erly sorted.  Later,  the  plaintiff  had  the  corn  weighed  and  put  into 
the  car,  unknown  to  defendant.  The  record  does  not  disclose  what 
afterwards  became  of  the  corn.  Very  evidently  the  delivery  was  not 
such  as  is  contemplated  by  section  4626  of  the  Code.  To  take  a  con- 
tract out  of  the  statute  of  frauds,  the  vendor  must  not  only  act  with 
the  purpose  of  vesting  the  right  of  possession  in  the  vendee,  but  the 
latter  must  actually  accept  with  the  intention  of  taking  possession 
as  owner.  Remick  v.  Sandford.  120  Mass.  309;  Knight  v.  Mann, 
118  Mass.  143;  Young  v.  Blaisdell.  60  Me.  272;  Stone  v.  Browning, 
51  N.  Y.  211;  Smith  v.  Hudson,  6  Best  &  S.  431;  8  Am.  &  Eng. 
Enc.  Law,  738. 

However  we  might  regard  the  act  of  the  plaintiff,  there  was  no 
acceptance  of  the  corn,  but  a  refusal  to  receive  it.  In  Shepherd  v. 
Pressey,  32  N.  H.  55,  the  court  said :  "No  act  of  the  seller  alone, 
in  however  strict  conformity  to  the  terms  of  the  contract,  will  satisfy 
the  statute.  There  must  be  acts  of  the  buyer,  of  accepting  and  ac- 
tually receiving  the  goods  sold,  beyond  the  mere  fact  of  entering  in- 
to the  contract,  to  bind  the  latter."  Maxwell  v.  Brown,  39  Me.  101, 
63  Am.  Dec.  605;  Boardman  v.  Spooner,  13  Allen  (Mass.)  357,  90 
Am.  Dec.  196;    Prescott  v.  Locke,  51  N.  H.  94,  12  Am.  Rep.  55. 

When  making  the  contract,  the  defendant  took  some  corn  in  a 
small  sack  to  send  away  as  a  sample.  He  simply  helped  himself  to 
this,  and  it  was  neither  delivered  nor  taken  as  part  of  the  corn 
bought.     No  part  of  that  sold  was  accepted. 

Merely  preparing  it  for  market  was  not  labor  expended  in  pro- 
ducing or  procuring  it.    Lewis  v.  Evans,  108  Iowa.  296,  79  N.  W.  81. 

The  errors  assigned  and  argued  relating  to  striking  out  of  certain 
evidence  require  no  attention,  as,  if  conceded,  the  rulings  were  with- 
out prejudice.  All  the  evidence  adduced  fell  short  of  making  out  a 
case,  and  the  court  was  right  in  directing  a  verdict.     Affirmed.-^ 

2  7  In  Stone  v.  Browning,  68  N.  Y.  598  (1877),  the  court  said:  "It  is  argued 
that  it  is  unreasonable  to  suppose  that  the  object  of  sending  the  goods  to 
the  defendants'  store  was  merely  to  enal)le  theui  to  decide  whether  they 
wourd  purchase  thein  or  not.     It  perhaps  was  not  the  intention  of  the  plain- 


678  STATUTE    OF   FRAUDS  (Ch.  8 


ATHERTON  et  al.  v.  NEWHALL  et  al. 

(Supreme   Judicial    Court   of   Massachusetts,    1877.     123    Mass.    141,    25    Am. 

Kep.  47.) 

Contract  to  recover  the  price  of  660  sides  of  sole  leather.  At  the 
trial  in  the  Superior  Court,  before  Gardner,  J.,  it  appeared  that  the 
plaintiffs  were  dealers  in  leather  in  Boston,  and  that  the  defendants 
were  manufacturers  of  boots  and  shoes  in  Lynn.  One  of  the  plain- 
tiffs testified  that  the  defendant  Newhall  called  at  their  store  on  Sat- 
urday, November  9,  1872,  examined  some  leather,  and  said  he  would 
take  "what  leather  was  adapted  to  his  purpose,"  being  leather  "light 
weight"  in  thickness,  out  of  a  certain  lot  of  about  800  sides  which 
were  piled  up  in  the  store ;  and  that,  after  Newhall  had  gone,  he 
assisted  in  sorting  out  the  leather  intended  for  the  defendants,  which 
was  then  rolled  up  into  44  rolls,  containing  660  sides,  weighed,  marked 
with  the  defendants'  names,  and  placed  near  the  front  door  of  the 
store,  ready  for  delivery.  It  was  also  in  evidence  that  in  the  after- 
noon of  the  same  day  an  expressman,  who  was  in  the  habit  of  call- 
ing at  the  plaintiffs'  store  for  goods  for  Lynn,  called  and  took  six 
rolls  of  the  leather,  containing  90  sides,  which  was  all  his  wagon 
could  carry,  with  the  goods  then  on  it,  but  did  not  deliver  them  until 
the  Monday  following  to  the  defendants,  who  were  regular  customers 
of  his ;  but  in  this  case  no  order  had  been  given  to  him  by  either 
party.  The  plaintiffs'  store  with  its  contents,  including  the  remaining 
570  sides  of  leather,  was  burned  in  the  great  fire  of  November  9. 
1872.  On  Monday,  November  11,  1872,  the  defendant  Newhall 
called  on  the  plaintiffs  and  produced  the  bill,  which  he  had  received 
from  the  plaintiffs,  for  the  660  sides,  and  requested  their  bookkeeper 
to  correct  the  bill  so  as  to  correspond  with  the  amount  of  leather 
actually  received  by  him,  and  the  bookkeeper  thereupon  deducted 
the  570  sides  from  the  bill.  On  March  20,  1873,  he  tendered  to  the 
plaintiff"  $394,  the  amount  due  for  the  90  sides,  which  they  declined 
to  receive. 

Upon  this  evidence,  the  judge  ruled  that  there  was  no  evidence  of 
any  delivery  to  or  acceptance  by  the  defendants  of  the  570  sides  of 
leather,  directed  the  jury  to  return  a  verdict  for  the  price  of  the  90 
sides,  and  reported  the  case  for  the  consideration  of  this  court.  If 
the  action  could  be  maintained  for  the  whole  660  sides,  the  verdict 
was  to  be  set  aside;  otherwise,  judgment  was  to  be  entered  on  the 
verdict. 

tiffs  tliat  the  defendants  should  have  the  option  of  rejecting  the  goods,  un- 
less some  just  reason  for  so  doing  should  be  developed  by  the  examination ; 
but,  nevertheless,  so  long  as  the  plaintiffs  reposed  upon  a  verbal  contract, 
void  under  the  statute,  they  exposed  themselves  even  to  an  unjust  refusal 
to  accept.  The  only  mode  of  securing  themselves  against  such  a  result  was 
to  obtain  a  written  memorandum  of  the  purchase.  The  injustice  of  the  re- 
fusal, if  it  were  unjust,  could  not  supply  the  place  of  an  acceptance  or  of  a 
written  contract." 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         679 

Gray,  C.  J.  It  is  unnecessary  to  consider  whether  there  was  a  suf- 
ficient delivery  to  complete  the  sale,  because  it  is  quite  clear,  upon 
the  authorities,  that  there  was  no  such  acceptance  and  receipt  of 
part  of  the  goods  as  would  satisfy  the  statute  of  frauds.  Gen.  Sts. 
c.  105,  §  5.  Such  acceptance  must  be  by  the  buyer  himself,  or  by 
some  one  authorized  to  accept  in  his  behalf.  The  acts  of  the  buyer 
on  Saturday  did  not  constitute  such  an  acceptance,  because,  accord- 
ing to  the  seller's  own  testimony,  the  buyer  merely  agreed  to  take 
all  the  sides  of  leather  of  a  certain  thickness,  which  were  not  then 
set  apart  by  themselves,  but  formed  part  of  a  large  pile  from  which 
they  were  afterwards  to  be  selected  by  the  seller.  Knight  v.  Mann, 
118  Mass.  143.  The  receipt  of  part  of  the  leather  by  the  express- 
man did  not  constitute  such  an  acceptance,  because  he  was  not  au- 
thorized to  accept  so  as  to  bind  the  buyer.  Johnson  v.  Cuttle,  105 
Mass.  447,  7  Am.  Rep.  545.  The  acceptance  by  the  buyer  on  Mon- 
day, of  the  part  brought  by  the  expressman,  was  not  a  sufficient  ac- 
ceptance to  take  the  sale  of  the  whole  out  of  the  statute,  because  it 
appears  that  it  was  not  with  an  intention  to  perform  the  whole  con- 
tract and  to  assert  the  buyer's  ownership  under  it,  but,  on  the  con- 
trary, that  he  immediately  informed  the  seller's  clerk  that  he  would 
be  responsible  only  for  the  part  received.  Townsend  v.  Hargraves, 
118  Mass.  325,  ZZl\   Remick  v.  Sandford,  120  Mass.  309. 

Judgment   on   the    verdict. 


JOHNSTON  V.  TRASK  et  al. 

(Court  of  Appeals  of  New  York,  ISSO.     116  N.  Y.  1.36,  22  N.  E.  377,  5  L.  R.  A. 
6.30,  15  Am.   St.  Rep.  394.) 

This  was  an  action  for  a  breach  of  contract. 

Since  January,  1882,  the  defendants  have  been  bankers  and  bro- 
kers, doing  business  as  partners  under  a  firm  name.  On  the  trial 
of  the  issues,  the  plaintiff  testified  that  on  the  18th  day  of  January, 
1882,  the  managing  partner  of  the  firm,  at  its  place  of  business,  orally 
agreed  with  the  plaintiff  to  purchase  for  him,  if  they  could  be  bought 
in  the  market,  income  mortgage  bonds  of  the  Ohio  Central  Railroad 
of  the  par  value  of  $10,000,  "and  [giving  the  language  of  said  part- 
ner] any  time  you  want  to  get  rid  of  them,  we  will  take  them  off  of 
your  hands  at  what  they  cost  you."  Later  in  the  day,  the  defendants 
reported  to  the  plaintiff"  that  they  had  purchased  the  bonds  for  $4,- 
800,  and  their  commissions  were  $12.50;  and  thereupon  the  plaintiff 
paid  $1,000  towards  the  purchase  price.  The  bonds  were  retained 
by  the  defendants  as  security  for  the  sums  due  from  the  plaintiff  to 
them  until  November  16,  1882,  when  the  plaintiff  paid  the  full  pur- 
chase price  for  the  bonds,  commissions,  and  interest,  and  took  them 
into  his  possession.  The  market  price  of  the  bonds  declined  until 
April  28,  1884,  when  they  were  selling  for  about  10  cents  on  a  dol- 


680  STATUTE    OF   FRAUDS  (Ch.  8 

lar.  On  this  date  the  plaintiff  tendered  the  bonds  to  the  defendants, 
and  demanded  that  they  should  pay  him  $4,812.50,  which  they  re- 
fused to  do;  and  April  30,  1884,  this  action  was  brought,  on  con- 
tract, to  recover  that  sum.  The  defendants  did  not  contradict  the 
plaintiff's  evidence,  which  was  corroborated  by  three  witnesses ;  but 
at  the  close  of  his  case  they  moved  for  a  nonsuit  on  the  grounds: 

First.  That  the  oral  contract  was  void  for  not  complying  with  the 
following  section  of  the  statute  of  frauds : 

"Sec.  3.  Every  contract  for  the  sale  of  any  goods,  chattels,  or 
things  in  action,  for  the  price  of  fifty  dollars  or  more,  shall  be  void, 
unless  (1)  a  note  or  memorandum  of  such  contract  be  made  in  writ- 
ing, and  be  subscribed  by  the  parties  to  be  charged  thereby;  or  (2) 
unless  the  buyer  shall  accept  and  receive  part  of  such  goods,  or  the 
evidences,  or  some  of  them,  of  such  things  in  action ;  or  (3)  unless 
the  buyer  shall,  at  the  time,  pay  some  part  of  the  purchase  money." 

FoLivETT,  C.  J.  An  oral  contract  by  which  a  person  sells  his  own 
chattels  or  choses  in  action  for  more  than  $50,  payment  and  delivery 
being  made,  and  agrees  to  take  them  back  from,  and  repay  the  pur- 
chase price  to,  the  purchaser  on  demand,  is  an  entire  contract ;  and 
the  promise  to  take  back  the  property,  and  repay  the  purchase  price, 
is  not  void  by  the  third  section  of  the  statute  of  frauds.  Wooster 
V.  Sage,  67  N.  Y.  67 ;  Fitzpatrick  v.  \^'oodruff,  96  N.  Y.  561 ;  White 
v.  Knapp,  47  Barb.  549;  Williams  v.  Burgess,  10  Adol.  &  E.  499; 
Fay  V.  Wheeler.  44  Vt.  292 ;  Dickinson  v.  Dickinson,  29  Conn.  600 ; 
1  Benj.  Sales,  (Corbin's  Ed.)  §  169. 

Executed  contracts  of  sale",  embracing  a  promise  by  vendors  of 
chattels  that  in  case  they  do  not  suit  the  purchaser,  or  do  not  possess 
certain  specified  qualities,  the  vendor  will  repay  to  the  vendee  the 
purchase  price  upon  their  return,  have  been  frequently  considered 
by  the  courts,  (Towers  v.  Barrett,  1  D.  &  E.  133 ;  Thornton  v. 
Wynn,  12  Wheat.  183,  6  L.  Ed.  595)  but  no  case  has  been  cited 
holding  that  such  a  promise  on  the  part  of  a  vendor  is  an  independ- 
ent contract.  When  an  agent,  by  an  oral  contract,  sells  and  delivers 
the  goods  of  a  disclosed  principal,  his  personal  oral  warranty  of 
quality  is  not  a  contract  independent  of  the  contract  of  sale,  but  is 
a  part  of  it,  and  one  consideration  is  sufficient  to  support  the  sale 
and  warranty.  The  oral  contract  of  the  defendants  that  they  would 
purchase  for  the  plaintiff'  in  the  market,  at  market  rates,  the  bonds, 
for  the  usual  compensation,  and,  in  case  he  should  thereafter  become 
dissatisfied  with  the  bonds,  that  they  would,  on  demand,  take  them  off 
his  hands  at  what  they  cost  him,  was  a  single  contract.  Under  this 
contract,  the  bonds  were  purchased,  and  held  by  the  defendants  until 
the  purchase  price  and  their  commissions  were  paid,  and  then  they 
delivered  the  bonds  to  the  plaintiff.     The  promise  of  the  defendants 

2  8  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  4)      ACCEPTANCE  AND  RECEIPT  OF  PART  OF  GOODS         681 

that  they  would  take  the  bonds  off  the  plaintiff's  hands  at  what  they 
cost  him,  upon  request,  is  not  a  contract  for  the  sale  of  goods,  chat- 
tels, or  things  in  action,  within  the  third  section  of  the  statute  of 
frauds,  but  is  a  provision  for  the  rescission  of  the  entire  contract, 
and  is  valid. 

The  learned  counsel  for  the  appellant,  in  support  of  his  conten- 
tion, cites  Hagar  v.  King,  38  Barb.  200.  In  that  case  a  firm  was  in- 
debted to  the  plaintiffs  in  the  action  for  work  performed  in  construct- 
ing part  of  a  railroad.  The  defendant,  who  was  one  of  the  firm, 
asked  the  plaintiffs  to  take  from  the  railroad  corporation  its  bonds 
in  payment  of  the  debt,  orally  agreeing  with  the  plaintiffs,  for  him- 
self, that,  if  they  would  so  take  the  bonds,  he  (not  the  firm)  would, 
within  10  days,  take  the  bonds  from  and  pay  to  the  plaintiffs  the 
amount  of  the  firm's  debt.  The  plaintiff's  assented  to  the  proposal. 
Afterwards  they  accepted  from  the  corporation  its  due-bill  for  the 
amount  due  them  for  their  work,  payable  in  the  bonds  of  the  corpo- 
ration, and  gave  a  receipt  for  all  of  their  demands  for  work  done 
on  the  road.  The  plaintiffs  then  "indorsed  the  due-bill,  delivered  it 
to  the  corporation,  and  received  the  bonds.  Within  10  days  the 
plaintiffs  tendered  the  bonds  to  the  defendant,  and  demanded  the 
amount  for  which  they  were  taken  in  payment.  It  was  held  that 
the  oral  agreement  embraced  two  contracts, — one  to  accept  the  bonds 
in  payment  of  the  debt,  and  another  to  purchase  the  bonds  at  a  fu- 
ture day  at  a  given  price, — and  that  the  latter  contract  was  within 
the  third  section  of  the  statute  of  frauds,  and  void.  That  case  is 
easily  distinguishable  from  the  one  at  bar.  The  defendant  in  that 
case,  as  an  individual,  was  not  indebted  to  the  plaintiffs,  and  his  in- 
dividual contract  to  take  back  the  bonds  was  held  to  be  distinct  from 
the  contract  by  which  the  firm's  debt  was  paid  in  the  manner  de- 
scribed.    *     *     * 

Judgment    affirmed. 


CALVERT  V.  SCHULTZ. 

(Supreme  Court  of  Michigan,  1900.     143  Mich.  441,  106  N.  W.  112.3.) 

Assumpsit  by  George  T.  Calvert  and  Elmer  C.  Calvert,  copart- 
ners as  J.  Calvert's  Sons,  against  Frank  E.  Schultz,  for  goods  sold 
and  delivered.  There  was  judgment  for  defendant  on  a  verdict 
directed  by  the  court,  and  plaintiffs  bring  error.     Affirmed. 

Montgomery,  J.  March  7,  1903,  defendant  gave  plaintiffs  a  verbal 
order  for  a  car  of  Jackson  Hill  coal  worth  $179.03,  then  in  the  Mich- 
igan Central  Railroad  yards  at  Detroit,  Mich.  Immediately  upon 
receipt  of  this  order,  plaintiffs  telephoned  to  the  railroad  company 
to  turn  the  car  over  to  defendant,  and,  on  the  same  day,  sent  to  the 
railroad  company  a  written  order  to  the  same  eft'ect.  This  is  the 
method  by  which  delivery  of  coal  in  car  load  lots  is  usually  made. 


682  STATUTE    OF   FRAUDS  (Ch.  8 

The  same  day,  an  invoice  of  the  coal  was  sent  to  the  defendant. 
The  car  was  put  on  the  Twentieth  street  siding  by  the  railroad 
company  on  March  17th.  The  day  before  this,  T^Iarch  16th  (nine 
days  after  the  railroad  company  had  been  ordered  by  plaintiffs  to 
turn  the  car  over  to  defendant),  defendant  countermanded  his  order. 

At  the  trial,  defendant  claimed  the  verbal  order  was  within  the 
statute  of  frauds,  and  therefore  void.  Plaintiffs  claimed  that  no 
written  contract  was  necessary,  because  of  a  custom  existing  among 
coal  dealers,  by  which  the  direction  to  the  railroad  company  to  turn 
the  coal  over  to  the  purchaser  constituted  delivery  and  acceptance. 
Frequently  before  this,  delivery  of  other  car  load  lots  had  been 
made  to  defendant  himself  in  accordance  with  this  custom.  At  the 
conclusion  of  plaintiff's  testimony,  the  trial  court  directed  a  verdict 
for  defendant  because  the  custom  had  not  been  proven. 

The  conclusion  reached  was  right.  There  was  no  offer  to  show 
an  authority  conferred  by  the  defendant  upon  the  railroad  company 
to  accept  this  coal  for  him.  In  the  absence  of  such  authority,  de- 
livery to  the  company  was  not  delivery  to  the  defendant.  There 
was,  indeed,  no  delivery  to  the  carrier;  the  coal  was  already  in  its 
possession.  There  was  nothing  but  a  direction  to  the  carrier,  who 
held  possession  for  plaintiff,  to  make  delivery  to  defendant.  De- 
fendant was  no  party  to  this,  except  as  he  became  such  by  virtue 
of  his  parol  contract  wholly  void  by  the  statute  of  frauds.  That 
this  was  not  delivery  to  or  acceptance  by  defendant  is  clear.  1  Me- 
cliem  on  Sales,  §§  356,  358,  365 ;  Smith  v.  Brennan,  62  Mich.  349, 
28  N.  W.  892,  4  Am.  St.  Rep.  867 ;  Grimes  v.  Van  Vechten,  20  Mich. 
410;   Gatiss  v.  Cyr,  134  Mich.  233,  96  N.  W.  26,  2  Ann.  Gas.  544. 

The  claimed  custom  does  not  change  this  rule,  because  it  is  ap- 
parent that  the  evidence  of  acceptance  of  coal  by  purchasers  under 
similar  circumstances  proves  no  more  than  that  the  great  majority 
of  purchasers  would  not  insist  on  the  defense  of  the  statute  of 
frauds.  In  so  far  as  the  witnesses  undertook  to  testify  that  an  or- 
der to  the  carrier  was  a  delivery  or  acceptance  by  custom,  they 
assumed  to  testify  to  legal  conclusions.  But,  however  well  such 
custom  might  have  been  proved,  it  could  not  be  permitted  to  over- 
rids  the  express  words  of  the  statute.  Van  Hoesen  v.  Cameron,  54 
Mich.  609,  20  N.  W.  609 ;  29  Am.  &  Eng.  Enc.  L.  (2d.  Ed.)  pp.  378, 
381. 

The  judgment  is  affirmed. 


Sec.  5)  EARNEST  OR  PART  PAYMENT  683 


SECTION  5.— EARNEST  OR  PART  PAYMENT 


JENNINGS  &  SILVEY  v.  DUNHAM. 

(Court  of  Appeals  at  Kansas  City,  IMiissouri,  1895.     60  Mo.  App.  635.) 

EivLiSON,  J.  ^^  Plaintiffs  sued  the  defendant  for  damages  in  fail- 
ing to  take  of  them  a  lot  of  hogs,  according  to  a  contract  between 
them.  Defendant  prevailed  in  the  trial  court.  Plaintiffs  contracted 
with  defendant  to  sell  him  a  large  number  of  hogs.  Some  of  them 
were  to  be  fat,  and  others  stock  hogs.  They  were  to  be  delivered 
at  Seymour.    The  evidence  conflicts  as  to  the  exact  day  of  delivery. 

1.  The  first  question  presented  relates  to  the  statute  of  frauds. 
Our  statute,  section  5187,  Revised  Statutes,  1889,  provides  that  no 
sale  of  personal  property  of  the  price  of  $30  or  more,  shall  be  valid, 
unless  the  buyer  accept  and  receive  a  part  of  the  property,  "or  give 
something  in  earnest  to  bind  the  bargain,  or  in  part  payment,"  or 
unless  some  written  memorandum  be  made.  There  was  no  delivery 
of  any  part  of  the  hogs  at  the  time  of  making  the  contract,  nor  was 
there  any  written  memorandum  of  the  sale ;  and  the  question  arising 
on  the  evidence  is,  was  there  a  part  payment?  It  was  shown  that 
plaintiffs  and  defendant  at  the  making  of  the  contract,  each  placed 
the  sum  of  $50  in  the  hands  of  a  third  party,  the  plaintiffs'  theory  at 
the  trial  being  that  the  sum  put  up  by  defendant  was  to  be  a  part 
payment;  while  on  the  other  hand  there  was  evidence  in  defend- 
ant's behalf  tending  strongly  to  prove  that  each  party  respectively 
put  up  these  sums  as  a  "forfeit,"  so  that  the  party  failing  to  perform 
his  contract  should  forfeit  the  amount  put  up  by  such  party;  the 
party  not  in  default  should  receive  the  whole  sum  put  up.  The 
trial  court  instructed  the  jury,  that,  if  the  money  was  placed  in  the 
hands  of  a  third  party  as  money  to  be  forfeited  by  the  defaulting 
party,  it  was  not  a  payment  and  the  contract  was  invalid. 

A  literal  reading  of  the  statute  undoubtedly  makes  a  distinction 
between  something  which  is  given  in  earnest  to  bind  the  bargain, 
and  that  which  is  given  in  part  payment.  Originally  this  "earnest" 
was  not  necessarily  a  part  payment.  It  was  a  custom  under  the 
common  law,  and  seems  also  to  have  been  a  custom  in  other  coun- 
tries than  England  to  give  something  to  bind  a  bargain.  In  some 
countries  some  act  was  performed.  Story  on  Sales,  §  273.  Benja- 
min states  in  his  work  on  Sales  (section  196)  that  one  species  of 
earnest  in  the  Roman  law  was  a  payment  of  a  sum  which  if  the 
sale  was  carried  out  was  to  be  credited  on  the  price,  but  which  car- 
ried the  understanding  that  it  was  forfeit  money  if  the  sale  was  not 

2  9  Part  of  the  opinion  is  omitted. 


684  STATUTE    OF   FRAUDS  (Ch.  8 

completed  b}-  the  buyer;  and  if  the  contract  was  not  performed  by 
the  seller,  he  was  to  return  to  the  buyer  the  money  advanced  to- 
gether with  a  like  sum  as  a  forfeit  on  his  part.  Whether  a  sum 
which  is  termed  forfeit  money  was  ever  a  species  of  earnest  by  the 
common  law  need  not  now  be  investigated,  since  it  has  ceased  to  be- 
of  practical  importance.  It  is  now  considered,  that  giving  some- 
thing in  earnest  to  bind  the  bargain,  and  giving  something  in  pay- 
ment mean  the  same  thing;  that  is,  a  part  payment  of  the  price. 
Benjamin  on  Sales,  §  189;  Story  on  Sales,  §§  273,  275.  So,  while 
in  some  countries  in  olden  times,  "earnest  to  bind  the  bargain" 
might  consist  of  forfeit  money,  it  is  not  so  now.  In  modern  times, 
earnest  must  be  a  part  payment  of  the  price.  And,  where  the  par- 
ties to  a  contract  put  up  a  sum  of  money  to  be  forfeited  to  the  non- 
defaulting  party,  it  is  not  a  part  payment,  and  therefore  does  not 
take  the  contract  out  of  the  statute  of  frauds.  This  was  directly  so 
held  in  Howe  v.  Hayward,  108  Mass.  54.  The  case  of  Alexander 
V.  Moore,  19  Mo.  143,  which  has  been  cited  by  plaintiffs,  is  not  in 
point ;  that  case  was  where  a  part  payment  of  the  price  was  put 
into  the  hands  of  a  third  party  by  the  purchaser.     *     *     * 

A  full  consideration  of  the  points  made  by  plaintiffs,  has  not  led 
us  to  the  discovery  of  an3'thing  which  would  justify  our  interfer- 
ence with  the  judgment,  and  it  is  accordingly  affirmed.    All  concur. 


EDGERTON  v.  HODGE. 

(Supreme  Court  of  Vermont,  1SG9.     41  Vt.  676.) 

Assumpsit,  which  was  referred  to  a  referee,  who  reported: 
"That  on  the  30th  day  of  June,  1864,  the  parties  made  an  agreement 
by  parol,  by  which  the  defendant  agreed  to  sell  to  the  plaintiff  what 
new  milk  cheese  he  then  had  on  hand,  and  unsold,  amounting  to  975 
lbs.,  and  the  new  milk  cheese  he  should  make  thereafter  during  the  sea- 
son, and  the  plaintiff  agreed  to  pay  the  defendant  therefor  at  the  rate 
of  fifteen  and  a  half  cents  per  pound,  and  every  twenty  days  thereafter 
agreed  to  call  at  the  defendant's  house  in  Dorset,  select  such  cheese  as 
would  be  fit  for  market,  attend  its  weight  there,  and  pay  the  defendant 
for  the  cheese  so  selected  and  weighed,  and  then  the  defendant  was  to 
deliver  the  same  to  the  plaintiff  at  the  railroad  depot  in  Manchester. 
The  day  after  the  above  agreement  was  made,  the  defendant,  by  his 
son,  Albert  Hodge,  wrote  and  sent  by  mail  a  letter  to  the  plaintiff  (a 
copy  of  which  is  annexed,  dated  July  1,  1864,)  depositing  the  same 
at  the  post  office  in  East  Rupert,  and  directed  to  the  plaintitf  at  Pawlet, 
and  received  by  him  by  mail  on  the  same  day.  The  next  day,  after 
the  return  mail  from  Pawlet  to  East  Rupert  had  gone  out,  it  being  on 
Saturday,  the  plaintiff  enclosed  in  a  letter,  directed  to  the  defendant, 
at  East  Rupert,  and  left  it  in  the  post  office  at  Pawlet,  to  be  carried 


Sec.  5)  EARNEST  OR  PART  PAYMENT  685 

by  mail  to  the  defendant,  the  sum  of  fifty  dollars.  (A  copy  of  plain- 
tiff's letter  is  hereunto  annexed,  and  the  envelope  enclosing  the  fifty 
dollars  is  postmarked  'Pawlet,  July  4.')  This  letter  of  the  plaintiff 
was,  on  the  8th  day  of  July,  1864,  handed  to  the  said  Albert  Hodge, 
by  the  postmaster  of  East  Rupert,  and  it  was  on  the  same  day  car- 
ried by  him  to  the  defendant,  opened  by  the  said  Albert,  the  fifty 
dollars  refused  to  be  received  by  the  defendant,  and  the  letter  of  the 
plaintiff,  with  the  fifty  dollars,  and  the  envelope  enclosing  them,  were, 
by  mail,  returned  to  the  plaintiff,  with  no  communication  accompany- 
ing them  from  the  defendant.  The  plaintiff  received  the  so  enclosed 
wrapper,  money  and  letter,  on  the  9th  of  July,  1864,  and  kept  the 
same  fifty  dollars  for  six  months  thereafter.  A  daily  mail  is  carried 
between  the  postoffices  of  Pawlet  and  East  Rupert,  a  distance  of  six 
miles.  On  the  20th  day  of  July,  1864,  the  plaintiff  sent  word  to  the 
defendant  to  deliver  what  cheese  he  had  fit  for  market  to  the  depot 
in  Manchester.  The  defendant  replied  to  the  messenger  that  he  had 
no  cheese  for  the  plaintiff.  No  other  communication  ever  took  place 
between  the  parties  in  regard  to  the  cheese  after  the  return  of  the 
money  as  above  stated  until  this  suit  was  brought.  The  defendant 
sold  all  his  cheese  to  other  parties,  making  his  first  sale  on  the  26th 
day  of  July,  1864. 

"If  the  court  shall  be  of  opinion  that  from  the  foregoing  facts  the 
plaintiff  is  entitled  to  recover,  and  that  the  rule  of  damages  should 
be  the  New  York  market  price  for  cheese  for  the  season  of  1864,  de- 
ducting freight  and  commission,  then  I  find  due  the  plaintiff  $411.01. 
If  the  current  price  in  the  country,  paid  by  purchasers  and  sent  by 
them  to  market,  is  to  be  the  rule,  then  I  find  due  the  plaintiff  the  sum 
of  $306.32." 

"Dorset,  July    1st,   1864. 

"Mr.  Edgerton — Sir:  According  to  our  talk  yesterday  you  bought 
my  cheese  for  the  season.  I  shall  stand  to  it,  but  shall  want  you  to 
pay  me  fifty  dollars  to  bind  it.  I  spose  there  is  nothing  holding  unless 
there  is  money  paid.  I  do  not  wash  you  to  think  I  wish  to  fly  from 
letting  you  have  it  so  that  it  is  sure.  I  will  pay  you  interest  on  the 
money  until  the  last  cheese  is  delivered. 

"Yours  in  haste,  J.  H.  C.  Hodge,  per  A.  H." 

"Pawlet,  July  2,  1864. 
"Mr.  Hodge — Dear  Sir:   I  enclose  you  fifty  dollars  to  apply  on  your 
dairy  of  cheese  as  you  proposed. 

"Yours  truly,  S.  Edgerton." 

The  court  at  the  March  term,  1868,  Pierpoint,  C.  J.,  presiding,  ren- 
dered judgment  on  the  report  that  the  plaintiff  recover  of  the  defend- 
ant the  smaller  sum  reported  by  the  referee,  and  for  his  costs,  to 
which  the  defendant  excepted. 

Wilson,  J.  The  parol  agreement,  entered  into  by  the  parties,  June 
30th,  being  for  the  sale  of  goods,  wares  and  merchandise  for  the  price 


086  STATUTE    OF   FRAUDS  (Ch.  8 

of  forty  dollars  and  more,  is  within  the  statute  of  frauds,  and  in- 
operative, unless  taken  out  of  the  statute  by  the  subsequent  acts  of  the 
parties.  It  is  claimed  by  the  plaintiff  that  the  defendant's  letter  under 
date  of  July  1st.  and  the  depositing-  of  the  plaintiff's  letter  with  the 
fifty  dollars  in  the  postofifice  on  the  2d  of  that  month,  constitute  a  pay- 
ment of  part  of  the  purchase  money  within  the  meaning  of  the  stat- 
ute. It  will  be  observed  that  when  those  letters  were  written,  no  bind- 
ing agreement  had  been  concluded.  The  defendant,  in  his  letter  of 
July  1st,  says:  "According  to  our  talk  yesterday,  you  bought  my 
cheese  for  the  season.  I  shall  stand  to  it,  but  shall  want  fifty  dollars 
to  bind  it."  By  that  letter  the  plaintiff  was  notified  that  he  could  make 
the  bargain  binding  upon  himself  as  well  as  the  defendant,  by  paying 
to  the  defendant  the  sum  demanded  for  that  purpose.  The  plaintiff" 
on  the  2d  day  of  July  enclosed  fifty  dollars  in  a  letter,  directed  to  the 
defendant  and  deposited  it  in  the  postoffice,  which  letter  was  delivered 
to  the  defendant  on  the  8th  of  that  month.  He  did  not  accept  the 
money,  but  returned  it  to  the  plaintiff. 

It  is  clear  that  the  act  of  depositing  the  letter  and  the  money  in  the 
postoffice  was  not  a  payment  to  the  defendant.  His  letter  did  not  di- 
rect the  money  to  be  sent  by  mail ;  it  contains  nothing  that  would  in- 
dicate that  the  defendant  expected  the  plaintiff'  would  reply  by  letter,  or 
accept  the  proposition  by  depositing  the  money  in  the  postoffice ;  and 
the  fact  that  the  defendant  by  letter  offered  to  allow  the  plaintiff  to- 
perfect  the  agreement,  by  paying  part  of  the  purchase  money,  did  not 
authorize  or  invite  the  plaintiff"  to  send  the  money  by  mail,  or  make 
the  mail  the  defendant's  carrier  of  the  money.  The  language  of  the 
defendant's  letter  is:  "I  shall  want  you  to  pay  me  fifty  dollars  to  bind 
it,"  that  is,  to  make  it  a  valid  contract. 

The  money,  when  deposited  in  the  postoffice,  belonged  to  the  plain- 
tiff ;  it  belonged  to  the  plaintiff  while  being  carried  by  mail  to  the  de- 
fendant, and  it  would  continue  the  property  of  the  plaintiff  unless 
accepted  by  the  defendant.  The  plaintiff  took  the  risk  not  only  of 
the  safe  conveyance  of  the  money  to  the  defendant,  but  also  as  to  the 
willingness  of  the  defendant  to  accept  it.  The  defendant's  letter,  not 
constituting  such  a  note  or  memorandum  of  the  agreement  as  the  stat- 
ute required,  left  it  optional  with  the  defendant  to  accept  or  refuse 
part  payment  when  offered  to  him,  the  same  as  if  the  defendant  had 
sent  to  the  plaintiff  a  verbal  communication  of  the  same  import  as  the 
defendant's  letter. 

A  point  is  made  by  counsel  as  to  whether  the  money  was  conveyed 
and  delivered  or  oft'ered  to  the  defendant,  within  a  reasonable  time 
after  his  letter  was  received  by  the  plaintiff,  but  it  seems  to  us  that 
the  time  the  money  was  offered  is  not  material.  We  think,  even  if  the 
plaintiff  had  gone  immediately  after  receiving  the  defendant's  letter, 
and  offered  and  tendered  to  him  the  fifty  dollars,  the  defendant  would 
have  been  under  no  legal  obligation  to  accept  it.  The  mere  offer  of 
the  defendant  to  receive  the  money  would  not  estop  him  from  refus- 


Sec.  5)  EARNEST  OR  PART  PAYMENT  687 

ing  to  accept  it ;  but  in  order  to  take  the  case  out  of  the  operation  of 
the  statute,  it  required  the  agreement  or  consent  of  both  parties,  as  to 
payment  by  the  plaintiff  and  acceptance  of  it  by  the  defendant. 

Upon  the  facts  of  this  case,  we  think  the  rights  of  the  parties  rest 
upon  and  are  to  be  determined  by  the  verbal  agreement  entered  into 
by  them  on  the  30th  of  June,  and  that  their  subsequent  attempts  to 
make  that  agreement  a  valid  contract  can  not  aid  the  plaintiff.  The 
statute  provides  that  "no  contract  for  the  sale  of  any  goods,  wares  or 
merchandise,  for  the  price  of  forty  dollars  or  more,  shall  be  valid,  un- 
less the  purchaser  shall  accept  and  receive  part  of  the  goods  so  sold, 
or  shall  give  something  in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment, or  unless  some  note  or  memorandum  of  the  bargain  be  made  in 
writing,  and  signed  by  the  party  to  be  charged  thereby,  or  by  some 
person  thereunto  by  him  lawfully  authorized." 

The  very  language  of  the  statute  above  quoted  implies  that  in  which- 
ever way  the  parties  verbally  agree  or  propose  that  a  contract  for  the 
sale  of  goods,  wares  or  merchandise,  for  the  price  of  $40  or  more, 
shall  be  made  exempt  from  the  statute  of  frauds,  whether  it  be  by  the 
purchaser  accepting  and  receiving  part  of  the  goods  so  sold,  by  giving 
something  in  earnest  to  bind  the  bargain,  or  in  part  payment,  or  by 
making  a  note  or  memorandum  of  the  bargain,  it  must  be  done,  if 
done  at  all,  by  the  consent  of  both  parties.  It  is  obvious  that  it  would 
require  the  consent  of  the  purchaser  to  accept  and  receive  part  of  the 
goods,  and  he  could  not  receive  them  unless  by  consent  of  the  seller ; 
the  purchaser  could  not  give  something  in  earnest  to  bind  the  bargain, 
or  in  part  payment,  unless  the  seller  accept  and  receive  it ;  nor  could 
a  note  or  memorandum  of  the  bargain  be  made  and  signed  unless 
by  the  consent  of  the  party  to  be  charged  thereby. 

A  valid  contract  is  an  agreement  or  covenant  between  two  or  more 
persons,  in  which  each  party  binds  himself  to  do  or  forbear  some  act ; 
and  each  acquires  a  right  to  what  the  other  promises ;  but  if  the  par- 
ties, in  making  a  contract  like  the  present  one,  omit  to  do  what  the 
statute  requires  to  be  done  to  make  a  valid  contract,  it  would  require 
the  consent  of  both  parties  to  supply  the  thing  omitted.  Suppose  it 
had  been  one  stipulation  of  the  verbal  agreement  on  the  30th  of  June 
that  the  plaintiff  should  give  and  the  defendant  receive  something  in 
earnest  to  bind  the  bargain,  and  in  pursuance  of  such  stipulation  the 
plaintiff  had  then  offered  to  give  or  pay  the  amount  so  stipulated,  and 
the  defendant  had  refused  to  receive  it,  saying  that  he  preferred  not 
to  receive  any  money  until  he  had  delivered  the  whole  or  part  of  the 
property,  or  had  refused  to  accept  the  money  so  offered,  or  do  any 
other  act  to  bind  the  bargain,  without  giving  any  reason  for  such  re- 
fusal, it  would  be  evident  that  he  did  not  intend  to  make  a  binding 
contract. 

But  the  fact  that  he  had  made  such  verbal  agreement  to  receive  some- 
thing or  to  do  some  other  act  to  bind  the  bargain,  and  that  the  plain- 
tiff was  ready  and  offered  to  comply  on  his  part,  would  not  take  the 


688  STATUTE    OF   FRAUDS  (Ch.  8 

agreement  out  of  the  statute.  A  verbal  stipulation  to  give  and  to 
receive  something  in  earnest  to  bind  the  bargain  or  in  part  payment, 
or  a  verbal  promise  to  make  a  note  or  memorandum  in  writing  neces- 
sary to  exempt  the  agreement  from  the  operation  of  the  statute,  is 
as  much  within  the  statute  of  frauds  as  is  the  agreement  or  contract 
taken  as  a  whole ;  and  a  note  or  memorandum  in  relation  to  giving 
something  in  earnest  to  bind  the  bargain,  or  in  part  payment,  which  is 
insufficient  of  itself  to  take  the  contract  out  of  the  statute,  is  also  in- 
sufficient to  make  the  contract  binding  upon  either  party. 

The  judgment  of  the  county  court  is  reversed  and  judgment  for  the 
defendant  for  his  costs. 


DRIGGS  V.  BUSH. 

(Supreme  Court  of  Michigau,  190S.     152  :Mich.  53,  115  N.  W.  9S5,  15  L.  R.  A. 
[N.  S.]  654,  125  Am.  St.  Rep.  389;  15  Ann.  Cas.  30.) 

Assumpsit  by  Hue  H.  Driggs  against  Levi  Bush  and  William  Dean 
for  breach  of  a  contract  for  the  sale  of  certain  hay.  There  was  judg- 
ment for  plaintiff,  and  defendants  bring  error.     Affirmed. 

Montgomery,  J.  The  plaintiff  is  a  buyer  of  hay,  and  through  his 
agents.  Homer  B.  McWilliams  and  John  Van  Horn,  made  a  contract 
with  the  defendants,  who  own  and  operate  two  farms  in  Van  Buren 
county,  and  who  were  the  joint  owners  of  the  hay  crop  thereon,  for 
the  purchase  of  24  tons  of  hay  or  more  at  the  option  of  the  defend- 
ants. 

The  contract  was  by  parol,  and,  as  appears  by  the  testimony  of- 
fered on  behalf  of  the  plaintiff,  was  as  follows:  "Mr.  Dean  said: 
T  want  $10  a  ton  and  you  bale  the  hay.'  We  finally  bought  all  of 
the  hay  for  $10  a  ton,  and  we  to  do  the  baling,  and  we  were  to  take 
the  hay  the  first  cars  we  could  get  at  Gobleville  after  the  hay  was 
baled."  The  testimony  of  the  other  witness  for  plaintiff'  does  not 
vary  materially  from  this,  he  stating:  "We  were  to  pay  him  $10  a 
ton  for  it,  and  we  was  to  pay  for  the  baling." 

It  was  also  a  part  of  the  agreement  that  the  defendants  were  to 
draw  the  hay  to  Gobleville  and  place  the  same  on  board  cars.  After 
the  contract  was  made,  the  plaintiff  sent  balers  to  the  premises  of  the 
defendants  who  baled  the  hay,  the  defendants  being  present  and  assist- 
ing in  the  work.  The  price  paid  for  baling  the  hay  was  $1.10  per  ton, 
or  $33.55,  that  being  the  regular  price  for  such  services.  The  de- 
fendants subsequently  refused  performance  of  the  contract,  and  this 
action  was  brought  to  recover  damages  for  the  breach.  Plaintiff 
was  permitted  to  recover  below  the  diff'erence  between  the  purchase 
price  of  the  hay  and  its  actual  market  price  at  the  date  when  deliv- 
ery was  contemplated.  Defendants  bring  error,  and  contend  that  the 
contract  was  void  under  the  statute  of  frauds,  and  has  never  been 


Sec.  5)  EARNEST  OR  PART  PAYMENT  689 

validated,  and  this  presents  the  principal  question  for  our  considera- 
tion. 

Our  statute  of  frauds  (Comp.  Laws  1897,  §  9516)  reads  as  fol- 
lows: "No  contract  for  the  sale  of  any  goods,  wares  or  merchandise 
for  the  price  of  fifty  dollars  or  more,  shall  be  valid,  unless  the  pur- 
chaser shall  accept  and  receive  part  of  the  goods  sold,  or  shall  give 
something  in  earnest,  to  bind  the  bargain  or  in  part  payment,  or  un- 
less some  note  or  memorandum  in  writing  of  the  bargain  be  made, 
and  signed  by  the  party  to  be  charged  thereby  or  by  some  person 
thereunto  by  him  lawfully   authorized." 

It  is  obvious  that  at  the  time  this  contract  was  made  there  was  no 
such  delivery  or  part  payment  as  satisfied  the  terms  of  this  statute. 
But  as  this  statute  does  not  require  the  payment  or  acceptance  to 
be  at  the  time  of  the  making  of  the  contract,  as  in  the  case  in  New 
York  and  some  other  states  (see  1  Mechem  on  Sales,  §  419),  it  is 
competent  for  the  parties  to  validate  their  contract  by  any  act  which 
amounts  to  a  delivery  and  acceptance  or  to  a  payment.  The  circuit 
judge  was  of  the  opinion  that  when  the  hay  was  baled  by  the  plain- 
tiff's agents  upon  the  premises  of  the  defendants  and  with  their  co- 
operation, this  constituted  such  a  delivery  and  acceptance  as  would 
answer  the  requirements  of  the  statute  of  frauds. 

It  is  strenuously  insisted  that  there  was  no  such  delivery  or  ac- 
ceptance, and  plaintift"'s  counsel  do  not  seek  to  maintain  that  there 
was.  Without  passing  directly  upon  the  question,  therefore,  in  this 
case,  we  may  assume  that  there  was  no  such  completed  delivery  as 
the  statute  requires,  and  that  the  defendants  still  retained  the  title 
to  the  property  after  the  same  was  baled.  We  are  not  concerned 
with  the  correctness  of  the  reasoning  of  the  circuit  judge  if  the  cor- 
rect result  was  reached.  The  question  occurs,  therefore,  whether 
the  expenditure  of  $1.10  per  ton  upon  this  hay,  which  remained  the 
property  of  the  defendants,  which  expenditure  was  received  and  ac- 
cepted by  them,  and  was  made  in  pursuance  of  the  contract  between 
the  parties,  was  such  a  part  payment  as  answered  the  requirements 
of  the  statute. 

It  is  contended  that  the  thing  in  earnest  must  be  actually  paid, 
and  received  by  the  seller.  This  we  fully  accept.  But  there  can  be 
no  doubt  in  this  case  that  the  service  of  baling  this  hay  was  received 
and  accepted  by  these  defendants,  and  if  this  was  done  at  a  time 
while  the  hay  remained  their  property,  and  such  service  was  received 
in  pursuance  of  the  contract  made  between  the  parties,  we  can  con- 
ceive of  no  valid  objection  to  treating  this  as  a  part  payment  of  the 
consideration  which  was  to  pass  from  the  plaintiff  to  the  defend- 
ants at  a  time  prior  to  the  passing  of  the  title  of  the  hay  to  plaintiff. 
This  being  so,  there  has  been  a  payment  by  the  plaintiff  and  a  re- 
ceipt by  the  defendants  of  a  part  of  the  consideration.  It  was  the 
hay  in  its  improved  form  as  baled  hay,  which  according  to  the  theory 
Wood  w.  Sales — 44 


690  STATUTE    OF   FRAUDS  (Ch.  8 

of  the  defendants,  was  to  pass  from  the  defendants  to  the  plaintiff, 
and  if  this  be  accepted  as  true,  which  it  doubtless  is,  it  cannot  be 
successfully  contended  that  the  defendants  have  not  received  the 
value  of  services  performed  by  the  plaintiff  in  pursuance  of  this 
contract. 

Suppose  this  agreement  had  been  on  the  part  of  the  plaintiff  to 
pay  a  stated  price  for  this  hay  when  baled  and  delivered,  and  at  the 
same  time  to  thresh  defendants'  oats  on  the  farm.  The  contract 
would  not  be  materially  diff'erent.  In  the  one  case,  as  in  the  other, 
plaintiff  is  performing  a  service  for  defendants  which  increases  the 
value  of  their  property.  It  is  not  necessary  that  the  payment  made 
upon  the  contract  be  in  monev.  See  Kuhns  v.  Gates.  92  Ind.  66; 
Howe  V.  Jones,  57  Iowa,  130,  8  N.  W.  451,  10  N.  W.  299;  McLure 
V.  Sherman  (C.  C.)  70  Fed.   190. 

Defendants  rely  upon  Corbett  v.  Wolford,  84  Md.  426,  35  Atl. 
1088;  Terney  v.  Doten,  70  Cal.  399,  11  Pac.  743;  Galbraith  v. 
Holmes,  15  Ind.  App.  34,  43  N.  E.  575,  and  Hudnut  v.  Weir,  100 
Ind.  501,  which  was  again  before  the  court  as  Weir  v.  Hudnut,  115 
Ind.  525,  18  N.  E.  24. 

The  case  of  Corbett  v,  Wolford  is  claimed  to  be  controlling.  In 
that  case,  however,  while  the  facts  are  somewhat  similar  to  the  case 
under  consideration,  the  question  of  whether  the  baling  of  the  hay 
was  a  part  payment  was  not  under  consideration  at  all.  The  case 
dealt  with  the  sole  question  as  to  whether  there  had  been  in  fact  any 
delivery  and  acceptance  which  would  take  the  transaction  out  of  the 
statute  of  frauds. 

The  case  of  Terney  v.  Doten  arose  under  a  statute  which  ren- 
dered invalid  all  sales  of  personal  property  or  agreement  to  buy  or 
sell  unless  there  was  a  note  or  memorandum  in  writing,  or  an  ac- 
ceptance by  the  buyer  at  the  time  of  sale  paid  as  part  of  the  price. 
In  that  case  defendant  agreed  to  sell  plaintiff"  100  unbroken  horses  at 
the  price  of  $75  each.  The  defendant  was  to  gather  up  a  number 
of  horses  from  the  band  from  time  to  time  and  place  them  in  cor- 
rals from  which  plaintiff  was  to  select  not  less  than  20  and  commence 
rough  breaking  them,  having  for  that  purpose  the  use  of  defendant's 
harness,  cart,  etc.,  after  which  the  number  so  selected  and  broken 
were  to  be  turned  into  defendant's  pasture  field  and  another  selec- 
tion made  in  a  like  manner  and  for  a  like  purpose,  and  so  on  until 
the  whole  number  agreed  upon  had  been  bought  and  sold.  Under 
the  contract,  the  plaintiff  later  on  went  to  defendant's  ranch,  got 
together  a  number  of  horses,  from  which  plaintiff  selected  22  and 
commenced  breaking  them,  upon  the  conclusion  of  which  he  turned 
them  into  the  pasture  field  of  defendant  and  waited  for  defendant 
to  gather  another  lot.  It  was  held  that  none  of  the  horses  forming 
the  subject-matter  of  the  contract  ever  passed  into  the  absolute  con-i 
trol  and  possession  of  the  plaintiff,  and  that  there   A^as  no  acceptance 


Sec.  5)  EARNEST  OR  PART  PAYMENT  691 

and  receipt  of  any  of  them  by  the  plaintiff  within  the  meaning  of  the 
statute. 

The  question  whether  there  had  been  payment  to  the  defendant 
by  the  plaintiff  upon  the  contract  was  not  involved,  as  it  obviously 
could  not  have  been  urged  on  plaintiff's  behalf,  for  the  reason  that 
there  was  no  pretense  that  any  payment  was  made  at  the  time  of  the 
sale,  which  is  the  requirement  of  the  California  statute.  It  is  need- 
less to  repeat  that  our  statute  contains  no  such  requirement. 

The  cases  of  Galbraith  v.  Holmes  and  Hudnut  v.  Weir  are  very 
similar  in  their  facts.  In  Galbraith  v.  Holmes  it  appeared  that 
plaintiff  made  an  agreement  with  the  defendant  by  the  terms  of  which 
defendant  was  to  ship  him  flour  to  apply  upon  an  indebtedness  owing 
from  defendant  to  plaintiff.  Plaintiff  also  agreed  to  deliver  to  de- 
fendant his  own  sacks  in  which  to  put  the  flour  and  return  to  the 
plaintiff.  In  the  case  of  Hudnut  v.  Weir,  the  arrangement  was  very 
similar  except  that  the  purchaser  agreed  as  a  part  of  the  considera- 
tion of  the  sale,  to  furnish  the  bags  in  which  to  put  corn  when  shelled, 
but  it  was  said,  and  very  properly,  that  the  delivery  of  the  sacks  to 
the  seller  was  a  matter  for  the  purchaser's  own  accommodation  and 
was  not  part  payment,  and  that  therefore  this  did  not  take  the  trans- 
action out  of  the  statute.  But  in  Weir  v.  Hudnut,  the  averment 
of  the  declaration  being  that  the  use  of  the  sacks  was  to  be  treated 
as  part  consideration  for  the  purchase  of  the  property,  the  court 
held  that  this  stated  a  case. 

It  will  be  noted  that  in  these  cases  there  was  no  passing  of  the 
title  of  the  sacks  from  the  purchaser  to  the  seller.  In  the  present 
case,  any  work  done  upon  the  hay  in  baling  the  same,  passed  a  present 
benefit  from  the  purchaser  to  the  seller,  and  as  it  was  done  in  pur- 
suance of  the  contract,  it  could  be  nothing  else  than  payment  upon 
the  contract.  None  of  these  cases,  therefore,  militate,  against  the 
conclusion  which  we  announce,  that  this  contract  was  validated  by 
the  receipt  of  the  benefit  of  baling  the  hay  in  pursuance  of  the  con- 
tract. 

None  of  the  other  questions  presented  call  for  discussion,  as  they 
relate  to  the  other  feature  of  the  case.  For  instance,  it  is  contended 
that  the  rule  of  damages  was  improper  if  the  case  is  rested  upon  the 
view  that  the  title  to  the  hay  had  passed  from  defendants  to  the 
plaintiff.  It  does  not  lie  with  the  defendants  to  urge  that  the  title 
had  passed  by  delivery  and  receipt.  They  have  repudiated  that  view 
of  the  case,  and,  having  refused  to  perform  on  their  part,  the  plain- 
tiff's remedy  under  the  contract,  as  an  executory  contract,  would 
seem  to  be  complete  and  properly  applied  in  this  case.  See  Davis 
V.  Strobridge,  44  Mich.  157,  6  N.  W.  205. 

The  judgment  is  affirmed. 


692  STATUTE    OF   FRAUDS  (Ch.  8 

KROHN  V.  BANTZ. 

(Supreme  Court  of  ludiana,  1S79.    68  Ind.  277.) 

Worde;n,  J.  ^°     Complaint  by  Baiitz  against  Krohn  as  follows : 

"Noah  Bantz  complains  of  John  Krohn,  defendant,  and  says, 
that  heretofore,  on  the  15th  day  of  July,  1874,  he  contracted  with 
and  bought  of  defendant  two  hundred  and  fifty  head  of  hogs,  said 
hogs  to  average  three  hundred  pounds  gross,  and  none  to  weigh 
less  than  two  hundred  and  fifty  pounds,  to  be  delivered  at  the  town 
of  Albany  in  Delaware  county,  Indiana,  from  the  1st  to  the  15th 
of  December,  1874,  at  and  for  the  price  of  four  and  ■^V^°°  dollars 
for  each  one  hundred  pounds  of  the  gross  weight  of  said  hogs  as 
aforesaid ;  and  further,  that  there  were  not  to  be  among  said  hogs 
any  stag  hogs  or  sows  with  pig;  and  as  an  earnest  to  bind  said 
contract,  and  as  part  of  the  purchase-money  of  and  for  said  hogs 
under  said  contract,  plaintiff  at  the  time  and  place  of  making  said 
contract,  executed  and  delivered  his  promissory  note  for  one  hun- 
dred dollars  to  defendant,  due  in  thirty  days  from  the  day  of  date 
thereof,  and  drawing  ten  per  cent,  interest  from  date,  and  defend- 
ant accepted  and  received  said  note  aforesaid  as  earnest  upon  said 
contract. 

"Plaintiff  says  that  he  was  at  the  town  of  Albany  aforesaid  dur- 
ing the  whole  of  each  day  from  and  including  the  1st  day  of  De- 
cember up  to  and  including  the  15th  day  of  December,  1874,  ready 
and  willing  to  receive  said  hogs,  and  so  notified  the  defendant,  and 
demanded  said  hogs  of  defendant. 

"Plaintiff  avers  that  defendant  wholly  failed  and  refused,  and 
still  does  fail  and  refuse,  to  deliver  said  hogs  to  plaintiff,  as  under 
said  contract  he  was  in  duty  bound  to  do.  Plaintiff"  says,  by  reason 
of  defendant's  failure  and  refusal  to  deliver  said  hogs  as  aforesaid, 
he  has  been  damaged  three  thousand  dollars,  which  amount,  and 
every  part  thereof,  is  due  and  wholly  unpaid.    Wherefore,"  etc. 

A  demurrer  to  the  complaint  for  want  of  sufficient  facts  was  filed 
and  overruled.    Exception. 

Such  further  proceedings  were  had  in  the  cause  as  that  final 
judgment  was  rendered  for  the  plaintiff'. 

Error  is  assigned  upon  the  ruling  on  the  demurrer.     *     *     * 

We  now  proceed  to  inquire  whether  the  giving  of  the  note,  as 
alleged  in  the  complaint,  was  sufficient  to  take  the  case  out  of  the 
statute,  for  there  is  no  pretence  that  the  purchaser  received  any 
part  of  the  property. 

It  may  be  observed  that  the  note  is  not  an  agreement  for  the 
sale  of  the  hogs,  and  can  not  be  construed  as  a  sufficient  "note  or 
memorandum  in  writing"  of  that  bargain,  within  the  meaning  of 

3  0  Part  of  the  opiuion  is  omitted. 


Sec.  5)  EARNEST  OR  PART  PAYMENT  693 

the  statute.     Besides,  it  was  not  signed  by  the  party  sought  to  be 
charged  in  the  action. 

The  note,  we  think,  can  not  be  regarded  as  part  payment  within 
the  meaning  of  the  statute.  It  was  but  the  plaintiff's  agreement 
to  pay,  in  the  future,  a  part  of  the  purchase-money  for  the  hogs, 
before  the  arrival  of  the  time  for  their  delivery.  It  was  no  more 
effective  for  the  purpose  of  taking  the  contract  out  of  the  statute, 
as  part  payment,  than  would  have  been  the  plaintiff's  parol  promise 
to  do  the  same  thing. 

Had  the  note  been  of  such  a  character  as  to  be  governed  by  the 
law  merchant,  and  therefore  to  legally  operate,  prima  facie,  as  pay- 
ment, the  question  presented  might  have  been  different.  But  it 
was  not  shown  that  the  note  was  such  as  to  be  governed  by  the 
law  merchant.  A  debtor's  promissory  note,  not  governed  by  the 
law  merchant,  does  not  legally  operate  as  payment  of  the  debt; 
but  it  may  be  made  to  operate  by  the  express  agreement  of  the 
parties.    Maxwell  v.  Day,  45  Ind.  509;  Alford  v.  Baker,  53  Ind.  279. 

It  is  not  averred  in  the  complaint  that  there  was  any  express 
agreement  between  the  parties  that  the  note  should  be  received  as 
part  payment  for  the  hogs.  But,  if  there  had  been,  it  would  seem 
to  be  quite  doubtful  whether  such  an  agreement  would  make  the 
note  operate  as  part  payment  within  the  statute.  It  would  be  but 
an  agreement  that  a  promise  of  future  part  payment  should  operate 
as  part  payment,  while  the  statute  requires  something  more  than 
words ;  it  requires  part  payment,  and  not  a  promise  of  part  payment 
to  be  received  as  payment.  See,  on  this  point,  Brabin  v.  Hyde,  32 
N.  Y.  519;  Artcher  v.  Zeh,  5  Hill  (N.  Y.)  200;  Mattice  v.  Allen, 
*42  N.  Y.  492;  Matthiessen,  etc.,  Co.  v.  McMahon's  Adm'r,  38  N. 
J.  Law,  536;  Walrath  v.  Richie,  5  Lans.  (N.  Y.)  362;  Walker  v. 
Nussey,  16  M.  &  W.  602;  Ireland  v.  Johnson,  28  How.  Prac.  (N. 
Y.)  463. 

We  come  to  the  inquiry  whether  the  note  can  be  regarded  as 
earnest,  sufficient  to  bind  the  bargain,  and  are  clearly  of  the  opin- 
ion that  it  can  not. 

It  was  said  in  the  case  of  Howe  v.  Hay  ward,  108  Mass.  54,  11 
Am.  Rep.  306,  that  "as  used  in  the  statute  of  frauds,  'earnest'  is 
regarded  as  a  part  payment  of  the  price."  But,  conceding  that  it 
may  be  something  distinct  from  part  payment,  it  is  quite  clear  that 
it  must  have  some  value.  Browne,  Stat,  of  Frauds,  §  341 ;  Ben- 
jamin, Sales,  §  189,  and  note  c. 

The  note  was  of  no  value  whatever,  because  it  had  no  consid- 
eration to  support  it,  and  its  payment  could  not  therefore  have  been 
enforced.  To  say  that  such  a  note  has  value,  is  but  grasping  at 
a  shadow  and  losing  sight  of  the  substance.  The  contract  for  the 
sale  of  the  hogs  not  being  valid,  the  note  given  in  consideration  of 
the  agreement  therefor  was  based  upon  no  valid  consideration. 
That  the  note  was  void  for  want  of  consideration,  is  sustained  by 


694  STATUTE    OF   FRAUDS  (Ch.  8 

the  following  authorities;  Combs  v.  Bateman,  10  Barb.  (N.  Y.) 
573;  Hooker  v.  Knab,  26  Wis.  511.  See,  also,  the  case  of  Scott  v. 
Bush,  26  Mich.  418,  12  Am.  Rep.  311.  Indeed,  the  application  to 
the  question  of  a  general  principle  of  law  is  all  that  is  necessary  in 
order  to  dispose  of  it.  The  promise  of  one  party  may  be  a  good 
consideration  for  the  promise  of  the  other.  But  if  the  promise  of 
one  is  not  valid  and  binding,  because  not  made  in  accordance  with 
the  requirements  of  law,  it  can  furnish  no  valid  consideration  for 
the  promise  of  the  other.  The  element  of  mutuality  is  entirely  lack- 
ing in  such  case. 

For  these  reasons  we  conclude  that  the  complaint  did  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  and  that  the  demur- 
rer should  have  been  sustained. 

The  judgment  below  is  reversed,  with  costs,  and  the  cause  re- 
manded for  further  proceedings  in  accordance  with  this  opinion. ^^ 


WALKER  V.  NUSSEY. 

(Court  of  Exchequer,  1847.     16  Mees.  &  W.  302.) 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated.  Pleas, 
— 1st,  never  indebted;  2d,  a  set-off  for  goods  sold  and  dehvered,  and 
on  an  account  stated.  Issues  thereon.  At  the  trial,  before  the  under- 
sheriff  of  Yorkshire,  it  appeared  that,  the  defendant  having  sold  goods 
to  the  plaintiff  to  the  amount  of  £4  14s.  Ud.,  the  defendant,  on  a 
subsequent  occasion,  bought  of  him  a  lot  of  leather,  of  two  sorts,  by 
sample.  It  was  then  verbally  agreed  between  them,  that  the  £4  14s. 
Ud.  due  to  the  defendant  should  go  in  part  payment  by  him  to  the 
plaintiff'  for  the  leather.     Next  day  the  plaintiff  sent  in  the  goods  to 

the  defendant,  with  this  invoice : 

"Halifax,  Oct.  14,  1S46. 
"Mr.  William  Nussey,  bought  of  Thomas  Walker. 

£       s.       d. 

Dressed  hide  bellies,  287,  at  9d 10    15      3 

Insole,  376,  at  6io 10      3       8 

20     18     11 
By  your  account  against  me 4     14     11" 

The  defendant  returned  the  goods  within  two  days  as  inferior  to 
sample,  and  wrote  to  the  plaintiff  to  pay  him  the  £4  14s.  lid.  The 
plaintiff  refused  to  receive  the  goods,  and  brought  this  action,  stating, 
in  his  particulars  of  demand,  that  the  action  was  brought  to  recover  the 
sum  of  il6  4s.,  as  the  "balance  of  the  following  account,"  (setting  out 
the  above  invoice.) 

The  under-sheriff  ruled,  that  there  was  nothing  to  show  that  the  £4 
14s.  lid.  had  been  given  by  the  defendant  in  earnest,  or  part  of  pay- 

31  Compare  Ireland  v.  Johnson,  18  Abb.  Prac.  (N.  Y.)  392  (1865),  and  Logan 
V.  Carroll,  72  Mo.  App.  613  (1S97). 


Sec.  5)  EARNEST  OR  PART  PAYMENT  695 

ment,  under  29  Car.  II,  c.  3,  s.  17,  and  left  nothing  to  the  jury,  except 
on  the  point  of  acceptance  of  the  goods  by  the  defendant,  directing 
them  to  find  for  him  if  they  thought  he  returned  the  goods  in  a  rea- 
sonable time,  without  taking  to  them.  The  jury  found  a  verdict  for 
the  defendant  on  both  issues. 

Pollock,  C.  B.  I  think  no  rule  ought  to  be  granted.  The  plain- 
tiff sues  for  goods  sold  and  delivered  by  him,  to  the  defendant,  above 
ilO  in  value,  and  it  was  admitted  that  the  defendant  had  previously 
sold  him  goods  for  £4  14s.  lid.  On  the  new  dealing  between  them  the 
agreement  was,  that  that  sum  should  be  taken  as  part  payment  by  the 
defendant,  and  that  he  should  only  pay  the  plaintiff  the  difference  be- 
tween that  sum  and  the  amount  of  the  goods  bought  from  him.  This 
contract  was  verbal;  but  it  is  argued  that  the  £4  14s.  lid.  was  a  part 
payment  by  the  defendant,  so  as  to  take  the  case  out  of  the  Statute  of 
Frauds.  But  I  think  it  was  not.  Here  there  was  nothing  but  one  con- 
tract, whereas  the  statute  requires  a  contract,  and,  if  it  be  not  in  writ- 
ing, something  besides.  The  question  here  is,  whether  what  took  place 
amounted  to  a  giving  of  earnest  or  in  part  of  payment  at  the  time  of 
the  bargain,  the  goods  bought  by  the  defendant  not  having  been  then 
delivered  to  him  by  the  plaintiff.  Nothing  turns  on  the  effect  of  their 
subsequent  delivery.  Had  these  parties  positively  agreed  to  extinguish 
the  debt  of  £4  odd,  and  receive  the  plaintiff's  goods  pro  tanto  instead 
of  it,  the  law  might  have  been  satisfied,  without  the  ceremony  of  pay- 
ing it  to  the  defendant,  and  repaying  it  by  him.  But  the  actual  con- 
tract did  not  amount  to  that,  and  there  has  been  no  part  payment  with- 
in the  statute. 

Parke;,  B.  I  am  of  the  same  opinion,  and  think  the  ruling  at  the 
trial  was  right.  The  facts  seem  to  be  these.  The  plaintiff  owed  the 
defendant  a  sum  of  £4  14s.  lid.  The  parties  then  verbally  agreed 
that  the  plaintiff  should  sell  to  the  defendant  goods  above  £10  in  value, 
according  to  a  given  sample,  the  plaintiff's  debt  to  go  in  part  payment, 
and  the  residue  to  be  paid  by  the  defendant.  No  evidence  was  given 
of  the  actual  payment  or  discharge  of  the  debt  due  from  the  plaintiff, 
so  that  all  rested  in  the  agreement  merely.  If  Mr.  Addison  could  have 
shown  the  contract  to  have  been,  that  the  parties  were  to  be  put  in 
the  same  situation  at  that  time,  as  if  the  plaintift''s  debt  to  the  defend- 
ant had  then  been  paid,  or  as  if  it  had  been  paid  to  the  defendant,  and 
repaid  by  him  to  the  plaintiff  as  earnest,  the  statute  might  have  been 
satisfied,  without  any  money  having  passed  in  fact ;  but  the  agreement 
was  in  fact,  that  the  goods  should  be  delivered  by  the  plaintiff  by  way 
of  satisfaction  of  the  debt  previously  due  from  him  to  the  defendant, 
and  that  the  defendant  should  pay  for  the  rest.  Then  the  buyer  did 
not  "give  something  in  earnest  to  bind  the  bargain,  or  in  part  of  pay- 
ment." The  "part  payment''  mentioned  in  the  statute  must  take  place 
either  at  or  subsequent  to  the  time  when  the  bargain  was  made.  Had 
there  been  a  bargain  to  sell  the  leather  at  a  certain  price,  and  subse- 


STATTTE    OF   FRArDS  (Ch.  S 

quently  an  agreement  that  the  sum  due  from  the  plaintiff  was  to  be 
wiped  off  from  the  amount  of  that  price,  or  that  the  goods  delivered 
should  be  taken  in  satisfaction  of  the  debt  due  from  the  plaintiff; 
either  might  have  been  an  equivalent  to  part  pa3Tnent.  as  an  agreement 
to  set  off  one  item  against  anotlier  is  equivalent  to  pa^inent  of  money. 
But  as  the  stipulation  respecting  the  plaintiff's  debt  was  merely  a 
portion  of  the  contemporaneous  contract,  it  was  not  a  giving  something 
to  the  plaintiff  by  way  of  earnest,  or  in  part  of  pa}-ment,  then  or  sub- 
sequently. 

Rule  refused." 


MILOS  V.  COVACEVICH. 

fSixirreirie  OoTirt  of  Or^on.  1901.     40  Or.  239.  66  Pac.  914.) 

This  is  an  action  to  recover  S225  for  the  breach  of  a  contract  to 
deliver  a  fishing  neL  The  facts,  as  disclosed  by  the  pleadings  and 
testimony  on  behalf  of  the  plaintiff,  are,  in  substance,  that  on  March 
28,  1898,  the  plaintiff  and  defendant  had  an  accounting  and  settle- 
ment as  to  the  balance  then  due  plaintiff  for  labor  and  ser\"ices  there- 
tofore performed  for  the  defendant  as  a  result  of  which  it  was  oral- 
ly agreed  that  the  defendant  should,  in  payment  of  such  balance, 
deed  to  the  plaintiff  a  certain  lot  in  Portland,  of  the  estimated  value 
of  S500,  pay  him  SlOO  in  money  upon  the  happening  of  a  certain 
contingency,  and  deliver  to  him  a  fishing  net,  of  the  alleged  value 
of  S225.  at  the  close  of  the  fishing  season,  and  plaintiff  agreed  to 
receive  and  accept  such  property  in  full  settlem-ent  thereof.  On 
March  30th  the  defendant,  in  pursuance  of  this  agreement,  conveyed 
to  the  plaintiff,  by  warranty  deed,  the  lot  referred  to,  and  received 
a  receipt,  of  which  the  following  is  a  copy: 

"Portland,  Or.,  :March  30th,  1898. 

"Received  of  Peter  Covacevich  warranty  deed  to  lot  of  50x100 
feet  on  Division  and  Thirty- Second  streets,  the  said  conveyance  be- 
ing in  full  payment  of  all  labor  and  serv"ices  rendered  by  me  for 
the  said  Covacevich,  with  the  understanding  that  I  am  to  receive  an 
additional  one  hundred  dollars  when  the  remainder  of  the  four  (4) 
acre  tract  owned  by  the  said  Covacevich  on  Division  street  is  sold. 

"[Signed]  Mark    Milos." 

"Witness :    J.  E.  D.  Smith." 

The  defendant  refused  to  deliver  the  net,  and  this  action  was 
brought  to  recover  its  value.  At  the  close  of  plaintiff's  testimony 
the  defendant  moved  for  a  nonsuit  on  the  grotmd  that  the  contract 
was  within  the  statute  of  frauds,  and  void.  The  motion  was  over- 
niled,  and  plaintiff  had  judgment,  from  which  the  defendant  ap- 
peals. 

--  Concurring  opinions  were  delivered  by  Alderson  and  Piatt,  BB. 


Sec  5) 
Eean,  C 


-es?- 


11 


irecegit  -ex- 


...  T.  ^^ -^'---'-c  ^  --X  3S  X-  J-  Lair,  53*^    -  i    -■-■  = 

of  ti»e  r  _3t  tbere  Troder  cnns 

-  ■      "  ■  ^  ibe  pii        '       - 

:  eihr.    X ;  .         ■  rant  Tsra* 


tbe  Irajer  to  "bnr  ^oods  to  lije  Takw  of  an  grrsrmg  ddsit.  aaad  liiercifr 
saiisfA    :  ^  ^    :-      -^ :"■:--:-:":■    ?';        -     _    -^      --   .  _. 

there  ^,  .  .        ,  ■  .   .     . 

An  ex  2.  reit;.--.  :.  :-.  aI^ilan"^i.^.  ^,.:^  espeoalbr  t©  Walker  x, 
XnsseT,  16  MeesL  &  W,  302,  -srhScii  it  is  saSd  iiss  been  sdcipre d  -«nrh- 
:aT  dissent  in  tJje  text-boots  (Senj,  Sals,  13?;   Stoffy,  Sates,  §  ^ia; 


698  STATUTE    OF   FRAUDS  (Ch.  8 

1  Chit.  Cont.  564;  3  Pars.  Cont.  52),  the  court,  speaking  through 
Mr.  Justice  Depue,  says :  "The  principle  which  underlies  the  cases 
cited  and  on  which  they  rest  is  that,  where  no  written  evidence  of 
the  contract  is  made,  and  payment  is  relied  on  as  the  compliance  with 
the  statute,  mere  words  are  not  sufficient.  Some  act  in  part  per- 
formance or  part  execution  of  the  contract,  such  as  the  surrender  or 
cancellation  of  the  evidence  of  the  debt,  or  a  receipt  or  discharge 
of  the  indebtedness,  is  necessary  to  make  the  contract  valid."  To 
the  same  effect,,  see  1  Reed.  St.  Frauds,  §  231 ;  Browne,  St.  Frauds 
(4th  Ed.)  §  342a;  Brabin  v.  Hvde,  32  N.  Y.  519;  Gorman  v.  Bros- 
sard,  120  Mich.  611,  79  N.  W.  903;  Plow  Co.  v.  Hanthorn,  71  Wis. 
529,  Z7  N.  W.  825. 

This  doctrine  is  admitted  by  the  plaintiff,  but  his  contention  is 
that  the  receipt  executed  by  him  two  days  after  the  alleged  agree- 
ment was  a  sufficient  payment  to  take  the  cause  out  of  the  statute. 
The  statute  requires  the  payment  to  be  made  at  the  time  of  the 
agreement,  and  it  is  doubtful  whether  a  subsequent  payment  will 
suffice,  unless  it  is  made  for  the  express  purpose  of  complying  with 
the  statute,  or  at  a  time  when  the  parties  substantially  restated  or 
reaffirmed  the  terms  of  the  contract. ^^  1  Reed,  St.  Frauds,  §§  226, 
227.  But,  however  this  may  be,  if  the  receipt  is  to  be  considered  as 
evidence  of  the  contract  for  any  purpose  it  seems  to  us  there  is  no 
evading  the  conclusion  that  it  must  be  held  to  embody  all  the  terms 
thereof.  K  mere  receipt  is  always  open  to  explanation,  and  may  be 
varied  by  parol,  because  it  is  simply  an  admission  or  declaration  in 
writing;  but,  where  it  also  embodies  the  elements  of  a  contract,  the 
latter  is  subject  to  the  same  rules  as  any  other  contract.  19  Am.  & 
Eng.  Enc.  Law,  1123,  and  notes;  Conant  v.  Kimball's  Estate,  95 
Wis.  550,  70  N.  W.  74;  Jackson  v.  Ely,  57  Ohio  St.  450,  49  N.  E. 
792;  James  v.  Bligh,  11  Allen  (Mass.)  4;  Egleston  v.  Knickerbacker. 
6  Barb.  (N.  Y.)  458 ;  Coon  v.  Knap,  8  N.  Y.  402,  59  Am.  Dec.  502 ; 
Goodwin  v.  Goodwin,  59  N.  H.  548. 

By  the  writing  in  question,  binding  on  the  plaintiff  by  his  signa- 
ture and  on  the  defendant  by  its  acceptance,  it  is,  in  eft'ect,  agreed 
that  the  execution  and  delivery  of  the  deed  and  the  subsequent  pay- 
ment of  the  $100  is  a  full  satisfaction  and  discharge  of  the  de- 
fendant's indebtedness.  To  permit  the  plaintiff  to  show  by  parol 
that  he  was  to  receive  the  fishing  net  in  addition  to  the  items  specified 
in  the  writing  would,  it  seems  to  us,  clearly  be  permission  to  add 
to  or  vary  the  writing,  and  therefore  incompetent.  From  these 
views  it  follows  that,  if  the  case  is  to  be  considered  independently 

3  3  In  a  number  of  other  states  the  statute  expressly  requires  the  payment 
to  be  made  "at  the  time  of  the  contract."  and  it  has  frequently  been  held 
that  under  such  a  statute  a  subsequent  payment  will  not  suffice,  unless  ac- 
companied by  a  restatement  or  reco.^nition  of  the  essential  terms  of  the  con- 
tract. See  Jackson  v.  Tupper,  101  N.  Y.  515,  5  N.  E,  65  (1SS6) ;  WilUston, 
Sales,  §  99. 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  699 

of  the  writing,  on  the  theory  that  it  was  not  intended  to  express  the 
terms  of  the  contract,  the  plaintiff  must  fail  because  of  the  statute 
of  frauds.  If,  on  the  other  hand,  the  writing  is  to  be  deemed  evi- 
dence of  the  contract  for  one  purpose,  it  must  be  for  all,  and  he 
must  fail  because  of  the  incompetency  of  evidence  to  vary  or  con- 
tradict the  writing. 

In  either  view,  the  judgment  must  be  reversed,  and  it  is  so  or- 
dered. 


SECTION  6.— THE  NOTE  OR  MEMORANDUM 


MERRITT  &  MERRITT  v.  CLASON. 

(Supreme  Court  of  New  York,  ISlo.     12  Johns.  102,  7  Am.  Dec.  286.) 

This  was  an  action  of  assumpsit,  tried  at  the  New  York  sittings, 
in  April  last,  before  Mr.  Justice  Yates. 

John  Townsend,  a  witness  for  the  plaintiffs,  testified,  that  he 
was  a  broker,  and  was  employed  by  the  defendant  to  purchase 
rye.  On  the  18th  of  February,  1812,  he  applied  to  Isaac  Wright 
&  Son,  the  agents  of  the  plaintiffs  in  New  York,  and  agreed  to  pur- 
chase of  them  10,000  bushels  of  rye,  at  one  dollar  per  bushel,  and 
they  authorized  him  to  sell  the  same  to  the  defendant,  on  the  terms 
agreed  on;  the  witness  informed  the  defendant  of  the  terms  of 
sale,  and  was  directed  by  him  to  make  the  purchase  accordingly. 
The  witness  then  went  to  Wright  &  Son,  and  closed  the  bargain 
with  them,  as  agents  of  the  plaintiffs,  and  in  their  presence  wrote 
in  his  memorandum  book,  with  a  lead  pencil,  as  follows :  "Febru- 
ary 18th,  bought  of  Daniel  &  Isaac  Merritt,  (the  plaintiffs,)  by 
Isaac  Wright  &  Son,  10,000  bushels  of  good  merchantable  rye,  at 
one  dollar  per  bushel,  deliverable  in  the  last  ten  or  twelve  days  of 
April  next,  along  side  any  vessel  or  wharf  the  purchaser  may  direct, 
for  Isaac  Clason,  of  New  York,  payable  on  delivery."  All  the  other 
memoranda  in  the  same  book  were  written  with  a  lead  pencil.  Soon 
after  the  purchase  was  thus  completed,  the  witness  informed  the 
defendant  of  it,  but  did  not  give  him  a  copy  of  the  memorandum.^* 

Platt,  J.  The  only  point  is,  whether  the  memorandum,  made  by 
John  Townsend,  was  a  sufficient  memorandum  of  the  contract,  with- 
in the  statute  of  frauds,  to  bind  the  defendant. 

3  4  Part  of  the  statement  of  facts  is  omitted. 


700  STATUTE    OF   FRAUDS  (Ch.  8 

It  is  objected  by  the  defendant's  counsel, 

1.  That  the  memorandum  is  not  "in  writing,"  being  made  with 
a  lead  pencil  only. 

2.  That  it  is  not  "signed"  by  the  defendant,  nor  by  his  agent. 

3.  That  it  is  not  binding  on  the  defendant,  because  his  agent  did 
not  furnish  him  with  a  copy  of  it, 

I  have  no  doubt  that  the  memorandum  required  by  the  statute, 
may  as  well  be  written  with  a  lead  pencil  as  with  a  pen  and  ink; 
and  it  is  observable  that  in  most  of  the  reported  cases  on  this  head, 
the  memoranda  were  written  with  a  lead  pencil,  and  no  counsel, 
until  now,  has  ever  raised  that  objection. 

I  think  it  clear,  also,  from  the  authorities,  that  this  memorandum 
was  signed  according  to  the  statute. 

It  is  not  disputed,  that  the  authorization  of  the  agent,  for  such 
purpose,  need  not  be  in  writing.  In  the  body  of  this  memorandum 
the  name  of  Isaac  Clason,  the  defendant,  is  written  by  his  agent, 
whom  he  had  expressly  authorized  to  make  this  contract.  The 
memorandum,  therefore,  is  equally  binding  on  the  defendant  as  if 
he  had  written  it  with  his  own  hand ;  and  if  he  had  used  his  own 
hand,  instead  of  the  hand  of  his  agent,  the  law  is  well  settled,  that 
it  is  immaterial,  in  such  a  case,  whether  the  name  is  written  at  the 
top,  or  in  the  body,  or  at  the  bottom  of  the  memorandum.  It  is 
equallv  a  signing  within  the  statute.  Saunderson  v.  Jackson  and 
Another,  2  Bos.  &  Pull.  237;    1  Esp.  199;    1  P.  Wms.  770,  note  1. 

The  third  objection  is  absurd.  If  the  defendant's  agent  neglected 
his  duty,  in  not  furnishing  his  employer  with  a  copy  of  this  memo- 
randum, it  certainly  cannot  affect  the  rights  of  the  plaintiffs,  under 
that  agreement. 

The  memorandum  states,  with  reasonable  certainty,  every  es- 
sential part  of  the  agreement.  The  Court  are  of  opinion,  that  the 
plaintiffs  are  entitled  to  judgment. 

Judgment  for  the  plaintiff's.^^ 


SELBY  v.  SELBY. 

(High  Court  of  Chancery,  1S17.     3  Mer.  2.) 

The  bill  was  for  payment  of  the  arrears  of  an  annuity  to  which 
the  plaintiff  claimed  to  be  entitled  by  virtue  of  an  agreement  en- 
tered into  by  his  mother  (since  deceased)  on  the  occasion  of  his 
marriage ;  which  agreement  was  attempted  to  be  inferred  from 
letters  written  by  her  to  the  plaintiff  upon  that  occasion.  And,  on 
the  hearing,  a  question  was  raised,  whether  a  letter  addressed  to 

3  5  Under  statutes  requiring  the  memorandum  to  be  "subscribed,"  it  is  held 
that  the  signature  must  be  at  the  end  of  the  writing.  Coon  v.  Rigden,  4 
Colo.  275  (1S7S) ;    Davis  v.  Shields,  26  Wend.  (N.  Y.)  341  (1S41). 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  701 

the  plaintiff,  beginning  "My  dear  Robert,"  (which  was  his  Christian 
name,)  and  ending  with  the  words,  "Do  me  the  justice  to  believe 
me  the  most  affectionate  of  mothers,"  was  sufficiently  signed  with- 
in the  meaning  of  the  statute,  (2  Car.  II,  c.  3,  s.  4,)  although  the 
name  of  the  writer  nowhere  appeared  in  it. 

Sugden,  for  the  plaintiff. 

Before  the  statute,  it  was  only  necessary  to  prove  the  handwrit- 
ing of  the  party  to  constitute  a  binding  agreement;  and  all  that 
the  statute  requires  is,  that  there  should  be  a  signature ;  that  the 
agreement,  in  order  to  be  binding,  "shall  be  in  writing,  and  signed 
by  the  party  to  be  charged  therewith,  or  some  other  person  there- 
unto by  him  lawfully  authorized."  It  nowhere  says  that  the  sig- 
nature so  required  is  the  signing  of  the  name  of  the  party  sought 
to  be  bound  by  it.  Not  more  is  required  to  constitute  the  validity 
of  a  deed  than  of  a  will,  in  which  case  it  is  decided  that  the  tes- 
tator's putting  his  name  at  the  commencement  is  equivalent  to  his 
signing  it;  and  yet  the  statute  expressly  requires  a  signature.  See 
1  Bro.  C.  C.  410;  Sugd.  Vend.  &  Purch.  76,  77,  and  cases  cited. 
The  statute  requires  signing,  not  subscribing,  and  therefore  the  mark 
of  one  unable  to  write  is  a  sufficient  signature.  It  was  once  a  ques- 
tion whether  sealing  is  not  signing.    Shepp.  Touchst.  60,  c.  4,  No.  5. 

A  letter  written  in  the  third  person,  or  in  the  name  of  the  office 
and  not  of  the  individual,  would  be  a  sufficient  compliance  with  the 
terms  of  the  statute.  "The  Lord  Chancellor  agrees  to  do  so  and 
so"  would  bind  Lord  Eldon,  then  why  not  "the  mother  of  Robert 
Selby;"  and  why  not  any  other  words  by  which  the  condition  of 
the  writer  is  clearly  ascertained?  The  name  may  be  printed  or 
stamped  instead  of  being  written.  The  signature  may  be  by  initials 
only,  and  yet  this  would,  in  many  instances,  lead  to  the  greatest 
uncertainty. 

A  letter  not  signed  is  sufficiently  adopted  by  reference  to  it  made 
in  a  subsequent  instrument,  and  will,  together  with  that  instrument, 
constitute  a  sufficient  agreement  within  the  statute. 

Bell  for  the  defendant. 

The  words  of  the  statute  are  positive,  requiring  nothing  less  than 
an  actual  signing  to  constitute  the  agreement.  See  Ithell  v.  Pot- 
ter, cited  in  Hawkins  v.  Holmes,  1  P.  Wms.  770,  771.  It  is  not 
enough  that  the  signature,  or  that  which  stands  in  the  place  of  a 
signature,  should  identify  the  party.  If  so,  the  words  "your  af- 
fectionate mother"  might  be  dispensed  with,  and  proof  of  hand- 
writing would  be  of  itself  sufficient.  But  all  the  cases  say  there 
must  be  the  name  of  the  party,  or  his  mark  in  case  he  is  incapable 
of  writing  his  name,  but  even  that  mark  must  be  identified  by  a 
subscribing  witness.  In  Stokes  v.  Moore,  1  Cox,  219,  1  Cox's  P. 
Wms.  771,  note,  the  name  was  in  the  body  of  the  instrument,  and 
it  was  said,  "the  meaning  of  the  statute  is,  that  the  signing  should 
.amount  to  an  acknowledgment  by  the  party  that  it  is  his  agreement, 


702  STATUTE    OF   FRAUDS  (Ch.  8 

and,  if  the  name  does  not  give  such  authenticity  to  the  instrument, 
it  does  not  amount  to  what  the  statute  requires."  And  speaking-  of 
the  cases  of  wills  to  which  it  had  been  compared,  the  Lord  Chief 
Baron  observes,  "that  those  cases  have  been  where  the  instrument 
importing  to  be  the  final  instrument  of  the  party  has  been  formally 
attested,  and  is  in  its  nature  complete,  and  the  only  question  has 
been,  whether  the  form  of  the  statute  has  been  complied  with." 
1  Cox,  222,  3.  And  see  Walker  v.  Walker  in  the  Court  of  Dele- 
gates;   Sugd.  Vend.  &  Purch.  77,  note,  and  ante,  vol.  1,  p.  503. 

As  to  the  case  of  an  agreement  established  by  reference  to  it 
made  in  a  subsequent  letter  or  instrument,  the  principle  upon  which 
it  proceeds,  shews  that  it  is  nothing  to  the  present  purpose.  In 
Coles  v.  Trecothick,  9  Ves.  250,  the  Lord  Chancellor  says,  "though 
the  agreement  is  not  signed,  yet  if  the  letter  contains  all  the  terms 
and  describes  the  consideration  and  all  the  circumstances,  so  that 
by  the  contents  of  the  letter  it  can  be  connected  and  identified  with 
the  agreement,  that  letter,  which  not  only  is  not  a  signature,  but  is 
the  last  of  all  things  that  can  be  called  signing  the  agreement,  is 
a  writing  signed;  which,  ascertaining  the  contents  of  the  agreement, 
amounts  to  a  note  or  memorandum  of  it,  and  therefore  satisfies  the 
statute." 

Sugden,  in  reply. 

If  the  mark  of  a  marksman  be  considered  as  a  sufficient  compli- 
ance with  the  statute,  it  must  be  admitted  to  be  in  consequence  of 
the  principle  for  which  I  contend ;  namely,  that  it  is  enough  to 
identify  the  writer,  for  the  statute  has  no  where  said  that  a  mark 
will  do.  A  name  printed  or  stamped  has  always  been  held  suffi- 
cient, and  that  without  any  inquiry  whether  the  party  was  or  was 
not  capable  of  writing"  his  name. 

The  Master  of  the  Rolls  said,  if  he  had  apprehended  at  first, 
that  this  was  the  only  letter  applicable  to  the  purpose  of  the  plain- 
tiff's demand,  he  should  not  have  sufi'ered  the  cause  to  go  on;  for 
it  was  impossible  to  hold  that  it  could  be  taken  to  be  sufticiently 
signed  within  the  statute,  unless  it  were  by  reference  to  some  other 
instrument  having  a  proper  signature.  That  it  is  a  very  forced  con- 
struction of  the  words  of  the  statute  to  say  that  the  use  of  the  mere 
ordinary  terms  of  ceremony  constitutes  a  compliance  with  the  reg- 
ulations it  prescribes.  It  is  not  enough  that  the  party  may  be  iden- 
tified. He  is  required  to  sign.  And,  after  you  have  completely 
identified,  still  the  question  remains,  whether  he  has  signed  or  not. 
There  may  be  in  the  instrument  a  very  sufficient  description  to  an- 
swer the  purpose  of  identification  without  a  signing;  that  is,  with- 
out the  party  having  either  put  his  name  to  it,  or  done  some  other 
act  intended  by  him  to  be  equivalent  to  the  actual  signature  of  the 
name — such  as  a  person  unable  to  write  making  his  mark.  But  it 
was  never  said,  because  you  may  identify  the  writer,  therefore  there 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  703 

is  a  signature  within  the  meaning  of  the  statute.  If  so,  the  word 
"I"  or  "me"  would  be  enough,  provided  you  can  prove  the  hand- 
writing. 

Bill  dismissed.^' 


MORIN  V.  MARTZ  et  al. 
(Supreme  Court  of  Minnesota,  1S6S.     13  Minn.  191  \GU.  180].) 

This  action  was  brought  in  the  Court  of  Common  Pleas  of  Ramsey 
County,  to  recover  damages  for  the  non-performance  of  a  contract  for 
the  sale  and  delivery  of  wheat.  Issue  was  joined,  and  the  cause  tried 
before  the  court,  without  a  jury,  who  found  for  the  plaintiff,  and 
judgment  was  entered  in  his  favor.  From  this  judgment  defendant 
appeals  to  this  court.  As  the  only  question  discussed  in  this  court  was 
whether  the  contract  was  within  the  "statute  of  frauds,"  and  the  con- 
tract is  set  out,  at  length,  in  the  opinion,  no  further  statement  is  neces- 
sary. 

Berry,  J. 

"St.  Paul,  April  27,  1866. 

"We,  the  undersigned  parties,  have  sold  this  day  to  Mr.  H.  Morin, 
of  St.  Paul,  four  thousand  (4,000)  bushels  of  No.  1  wheat,  at  one 
dollar  and  ten  cents  per  bushel,  ($1.10,)  to  be  delivered  and  shipped 
on  board  of  boat  at  Strait  Landing,  two  thousand  (2.000)  bushels  to 
be  shipped  on  or  before  the  fifteenth  (15th)  day  of  March,  1866,  and 
the  balance  to  be  shipped  during  the  balance  of  said  month. 

"[Signed]  Frank  Martz. 

"Michael  Simmer." 

This  action  is  brought  to  recover  damages  for  a  failure  to  deliver 
and  ship  the  wheat  mentioned  in  the  foregoing  instrument  according 
to  the  terms  thereof.  Section  3,  c.  50,  Pub.  St.,  provides  that  "every 
contract  for  the  sale  of  any  goods,  chattels,  or  things  in  action,  for 
the  price  of  $50,  or  more,  shall  be  void,  unless  a  note  or  memorandum 
of  such  contract  be  made  in  writing  and  subscribed  by  the  parties  to 
be  charged  therewith." 

The  defendants  contend  that  the  instrument  above  recited  does  not 
satisfy  the  requirements  of  the  statute,  because  it  is  subscribed  by  the 
vendors  only,  and  that  the  complaint  is  insufficient,  because,  although 
alleging  that  a  memorandum  of  the  contract  of  sale  was  made  in  writ- 
ing, and  duly  subscribed  by  defendants,  it  does  not  allege  that  it  was 
signed  by  all  the  parties  to  such  contract.    But  the  construction,  which 

3  6  For  criticisms  of  tliis  decision,  see  Browne,  Statute  of  Frauds,  §  362; 
Williston,  Sales,  §  112,  note  Gl. 

A  signature  by  the  use  of  initials  is  sufficient.  Salmon  Falls  Mfg.  Co.  v. 
Goddard,  14  How.  (U.  S.)  446,  14  L.  Ed.  493  (1S.52).  So  is  a  signature  con- 
sisting of  the  signer's  first  or  Christian  name  only.  Walker  v.  Walker,  175 
Mass.  349,  56  N.  K.  601  (1900). 


704  STATUTE    OF   FRAUDS  (Ch.  8 

has  quite  uniformly  been  put  upon  the  statute  of  frauds,  is  otherwise. 
In  Clason  v.  Bailey,  14  Johns.  (N.  Y.)  487,  Chancellor  Kent  says: 
"It  is  sufficient,  if  the  agreement  be  signed  by  the  party  to  be  charged. 
It  appears  to  me  that  this  is  the  resujt  of  the  weight  of  the  authority 
both  in  the  courts  of  law  and  equity."  See  also  the  opinion  of  Senator 
Verplanck,  in  Davis  v.  Shields,  26  Wend.  (N.  Y.)  362. 

The  statute  of  frauds  was  enacted  in  the  reign  of  Charles  II,  nearly 
200  years  since,  and  the  same  construction  placed  upon  this  portion  of 
it  bv  Chancellor  Kent  has  been  adopted  with  a  remarkable  approach  to 
unanimity,  not  only  in  England,  but  in  this  country.  Prof.  Parsons 
says:  "And  it  is  now  quite  settled  that  the  agreement  need  not  be 
signed  by  both  parties,  but  only  by  him  who  is  to  be  charged  by  it." 
3  Parsons,  Cont.  (5th  Ed.)  9,  and  numerous  authorities  cited ;  Fenly 
V.  Stewart,  5  Sandf .  (N.  Y.)  101 ;  Old  Colony  R.  Co.  v.  Evans,  6 
Gray  (Mass.)  25,  66  Am.  Dec.  394;  Browne,  St.  Frauds,  §365;  1 
Smith,  Lead.  Cas.  466.  It  will  also  appear,  from  the  authorities  cited, 
that  the  language,  "who  is  to  be  charged  by  it,"  is  held  equivalent  to 
the  language,  "who  is  to  be  charged  by  it  in  the  suit,"  or  "against 
whom  it  is  sought  to  be  enforced." 

It  is  urged  in  this  case  that  the  use  of  the  plural  word  "parties"  is 
significant  when  read  by  the  light  of  other  portions  of  the  same  stat- 
ute, in  which  the  singular  word  "party"  is  made  use  of,  and  that  it 
is  fair  to  infer  that  the  legislature  intended  to  comprehend  in  the 
term  "parties"  all  the  parties  to  the  contract.  In  Clason  v.  Bailey,  14 
Johns.  (N.  Y.)  490,  Chancellor  Kent  adverts  to  this  point,  saying: 
"There  is  a  slight  variation  in  the  statute  respecting  agreements  con- 
cerning the  sale  of  lands,  and  agreements  concerning  the  sale  of  chat- 
tels, inasmuch  as  the  one  section  (being  the  fourth  section  of  the  Eng- 
lish and  the  eleventh  section  of  our  statute)  speaks  of  the  party,  and 
the  other  section  (being  the  seventeenth  of  the  English  and  the  fifteenth 
of  ours)  speaks  of  the  parties  to  be  charged.  But  I  do  not  find  from 
the  cases  that  this  variation  has  produced  any  difference  in  the  deci- 
sions. The  construction  as  to  the  point  under  consideration  has  been 
uniformly  the  same  in  both  cases." 

It  would  seem,  then,  that  by  a  strong  and  united  current  of  author- 
ity, the  signification  of  the  words  "parties  to  be  charged  therewith," 
or  of  words  equivalent,  in  the  statute  of  frauds,  has  been  settled  by  ad- 
judications reaching  over  a  very  long  period  of  time.  These  words 
have  acquired  a  meaning  which  it  was  not  absolutely  necessary  to 
give  them  in  the  first  instance ;  a  meaning  which  has  been  frequently 
regretted  bv  courts,  but  nevertheless  a  meaning  settled  and  established 
by  long  usage.  There  is  no  practical,  rational  way  of  determining  the 
meaning  and  definition  of  words  and  phrases,  except  by  inquiring  in 
what  sense  they  are  usually  employed  in  the  connection  in  which  they 
are  found.  And  following  this  course  we  are  of  opinion  that  the  leg- 
islature must  have  intended  to  use  and  must  have  used  the  words  "par- 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  705 

ties  to  be  charged  therewith"  in  the  sense  in  which  they  have  generally 
been  used  and  understood  in  like  cases. 

We  hold,  therefore,  that  the  subscribing  of  the  note  or  memorandum 
of  the  contract  in  this  case  by  the  vendors  alone  was  a  sufficient  sub- 
scription, under  the  statute,  in  an  action  brought  against  them. 

Judgment  affirmed. 


DRURY  et  al.  v.  YOUNG. 
(Court  of  Appeals  of  Maryland,  18S2.     58  Md.  54G.  42  Am.  Rep.  343.) 

Action  by  William  H.  H.  Young  for  non-delivery  of  twenty-five 
hundred  cases  of  tomatoes.  Verdict  and  judgment  for  the  plaintiff. 
The  defendants  appealed. ^^ 

Stone,  J.  One  of  the  questions  presented  for  our  consideration  in 
this  case  is,  whether  the  "note  or  memorandum  in  writing"  required 
by  the  seventeenth  section  of  the  statute  of  frauds,  must  be  delivered 
to  the  other  party  thereto.  It  is  apparent  from  the  evidence  that  the 
note  or  memorandum  in  writing  relied  on  in  this  case,  was  made  by  the 
bookkeeper  of  the  appellants  by  the  direction  of  one  of  them,  and  by 
the  bookkeeper  placed  in  their  safe,  among  other  papers,  where  it  re- 
mained from  the  27th  of  August,  1881,  the  day  on  which  it  was  writ- 
ten, until  it  was  produced  in  court,  at  the' trial  of  the  case  in  February, 
1882.  There  is  no  evidence  that  this  note  was  ever  seen  by  the  appel- 
lee, or  even  its  existence  known  to  him  until  the  trial ;  and  it  certainly 
never  was  delivered  to  him,  or  went  out  of  the  possession  of  the  ap- 
pellants, until  produced  in  court. 

It  is  strongly  insisted  by  the  appellants  that  the  statute  is  not  grati- 
fied without  a  delivery  of  this  note  or  memorandum.  It  must  be  borne 
in  mind  that  the  statute  of  frauds  was  not  enacted  for  cases  where  the 
parties  have  signed  a  written  contract ;  for  in  these  cases,  the  common 
law  affords  quite  a  sufficient  guarantee  against  frauds  and  perjuries, 
as  is  provided  by  the  statute.  The  intent  of  the  statute  was  to  prevent 
the  enforcement  of  parol  contracts,  unless  the  defendant  could  be 
shown  to  have  executed  the  alleged  contract  by  partial  performance, 
or  unless  his  signature  to  some  written  note  or  memorandum  of  the 
bargain — not  to  the  bargain  itself,  could  be  shown. 

The  existence  of  the  note  or  memorandum  presupposes  an  antece- 
dent contract  by  parol,  of  which  the  writing  is  a  note  or  memorandum. 
Benjamin  on  Sales,  sec.  208. 

Now  the  statute  itself  is  entirely  silent  on  the  question  of  the  de- 
livery of  the  note  or  memorandum  of  the  bargain,  and  its  literal  re- 
quirements are  fulfilled  by  the  existence  of  the  note  or  memorandum 

3  7  Substituted  statement.  The  facts  sufficiently  appear  in  the  opinion.  Part 
of  the  opinion  is  omitted. 

Wood  w.  Sales — 45 


706  STATUTE    OF   FRAUDS  (Ch.  S 

of  the  bargain,  signed  by  the  party  to  be  charged  thereby.  The  statute 
itself  deals  exclusively  with  the  existence  and  not  with  the  custody  of 
the  paper. 

If  the  non-delivery  of  the  note,  does  not  violate  the  letter  of  the 
statute,  would  it  violate  its  spirit  and  be  liable  to  any  of  the  mischiefs 
which  the  statute  was  made  to  prevent  ? 

The  statute  was  passed  to  prevent  fraud  practiced  through  the  in- 
strumentality of  perjury.  It  was  passed  to  prevent  the  defendant  from 
suffering  loss,  upon  the  parol  testimony  of  either  a  perjured  or  mis- 
taken witness,  speaking  of  a  bargain  different  from  the  one  in  fact 
made.  It  made  the  defendant  only  liable  when  a  note  or  memorandum 
of  the  bargain  signed  by  himself  was  produced  at  the  trial. 

If  produced  from  the  defendant's  own  custody,  it  guards  against 
the  mischief  that  the  statute  was  passed  to  prevent,  just  as  well  as 
if  produced  from  the  custody  of  the  plaintiff.  The  plaintiff  is  the  one 
likely  to  suffer  by  leaving  the  evidence  of  his  bargain  in  the  hands 
of  the  defendant — not  the  defendant  himself. 

The  statute  of  frauds  is  an  English  statute,  and  in  the  absence  of  any 
express  adjudication  of  our  own  court,  we  naturally  look  to  the  Eng- 
lish courts  as  the  best  expounders  of  their  own  statute,  and  gather 
from  them  the  principles  which  should  guide  us  in  construing  it. 

In  the  case  of  Gibson  v.  Holland,  1  Law  Reports,  C.  P.  1,  the  only 
note  or  memorandum  of  the  bargain  was  a  letter  addressed  by  the 
defendant  to  his  own  agent ;  the  court  decided  that  to  be  sufficient,  and 
Erie,  C.  J.,  in  delivering  his  opinion,  said : 

"But  the  objection  relied  on  is,  that  the  note  or  memorandum  of 
that  contract,  was  a  note  passing  between  the  defendant,  the  party 
sought  to  be  charged,  and  his  own  agent,  and  not  between  the  one  con- 
tracting party  and  the  other." 

"The  object  of  the  statute  of  frauds,  was  the  prevention  of  perjury 
in  the  setting  up  of  contracts  by  parol  evidence,  which  is  easily  fabri- 
cated. With  this  view,  it  requires  the  contract  to  be  proved,  by  the 
production  of  some  note  or  memorandum  in  writing.  Xow,  a  note 
or  memorandum  is  equally  corroborative,  whether  it  passes  between 
the  parties  to  the  contract  themselves,  or  between  one  of  them  and 
his  own  agent.  Indeed,  one  would  incline  to  think  that  a  statement 
made  by  the  party  to  his  own  agent,  would  be  the  more  satisfactory 
evidence  of  the  two." 

In  Johnson  v.  Dodgson,  2  Meeson  &  Welsby,  653,  the  defendant 
made  the  note  of  the  sale  in  his  own  book,  and  got  the  agent  of  the 
plaintiff  to  sign  it,  and  the  defendant  retained  the  book  in  his  own 
possession. 

It  was  held  by  the  court,  that  the  note  or  memorandum  was  suffi- 
cient, and  the  plaintiff  recovered.  No  notice  appears  to  have  been 
taken  by  the  court  in  their  opinion,  of  the  fact  that  the  memorandum 
had  not  been  delivered,  but  had  been  retained  possession  of  by  the 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  707 

defendant.  But  in  the  argument  of  the  case,  counsel  of  defendant 
said:  "Suppose  the  defendant  had  simply  made  a  memorandum  in 
his  own  book,  that  on  such  a  day  the  plaintiff  sold  to  him ;  would  that 
be  sufficient?"  To  which  Parke,  J.,  replied,  "If  he  meant  it  to  be  a 
memorandum  of  a  contract  between  the  parties,  it  would." 

From  these  authorities,  and  the  reasons  upon  which  they  were  de- 
cided, we  are  of  opinion,  that  delivery  is  not  essential  to  the  validity 
of  the  note  or  memorandum  of  sale. 

The  next  question  which  arises  is,  whether  the  note  or  memorandum 
in  this  case,  is  signed  by  the  defendant  ?    The  note  is  in  these  words : 

"Office  of  Drury,  Ijams  &  Rankin,  Wholesale  and  Retail  Grocers, 
and  Dealers  in  Flour,  Feed  and  Fertilizers,  Cor.  Gay  and  High  Streets. 
E.  T.  Drury,  W.  H.  Ijams,  Jr.,  S.  M.  Rankin,  Jr.  Baltimore,  Aug. 
27th,  1881.  Sold  W.  H.  H.  Young  &  Co.,  2,500  cans,  say  5,000  doz. 
C.  C.  C.  tomatoes,  @  $1.10  pr.  doz.  cash;  cars  at  Phila.  Depot,  Balto., 
-Md.  5,000  dozen,  @  $1.10c.,  $5,500.00."  It  appears  that  all  the  words, 
preceding  the  words,  "Baltimore,  August  27th,  1881,"  were  printed, 
and  that  the  printed  part  was  a  letter  head,  and  the  written  portion, 
under  the  heading.  The  names  of  the  defendants  being  in  print,  and 
at  the  beginning  of  the  note,  the  question  is,  whether  it  is  a  sufficient 
signing? 

It  is  entirely  immaterial  in  what  part  of  the  instrument  the  name  of 
the  party  to  be  charged  appears,  if  it  is  put  there  by  him,  or  by  his 
authority.      Higdon   v.   Thomas,    1    Har.   &   G.,    152. 

This  decision  of  our  court  settles  the  question  that  the  place  of  the 
signature  in  the  memorandum  is  immaterial,  and  the  English  cases  are 
equally  emphatic,  that  the  name  may  as  well  be  printed  as  written,  if 
the  printed  name  is  adopted  by  the  party  to  be  charged. 

In  Schneider  v.  Norris,  2  Maule  &  Selwyn.  286,  Lord  Ellenborough 
decided,  that  the  appropriation  and  recognition  of  a  printed  name  was 
sufficient. 

It  is  therefore  a  sufficient  signing,  if  the  name  be  in  print,  and  in 
any  part  of  the  instrument,  provided  that  the  name  is  recognized  and 
appropriated  by  the  party  to  be  his.  The  note  or  memorandum  in  this 
case  upon  its  face,  contains  all  the  necessary  terms  of  a  complete  bar- 
gain. 

The  names  of  the  vendors  and  purchasers,  the  quantity  and  quality 
of  the  goods  contracted  for,  the  price  at  which  they  were  sold,  and  the 
terms  of  sale,  and  the  place  of  delivery,  are  all  clearly  expressed  there- 
in, and  make  a  sufficiently  good  memorandum  required  by  the  stat- 
ute.    *     *     * 

Judgment  affirmed. 


708  STATUTE    OF   FRAUDS  (Ch.  8 

BAILEY  et  al.  v.  SWEETING. 

(Court  of  Common  Pleas,  1861.    9  C.  B.  [N.  S.]  843,  30  Law  J.  C.  P.  150.) 

ErlE,  C.  J.  This  was  an  action  for  goods  sold  and  delivered. 
There  was  an  oral  contract  for  the  sale  and  delivery  of  the  goods  in 
question;  but  the  defendant  relies  upon  the  Statute  of  Frauds,  and 
contends  that  there  was  no  note  or  memorandum  of  the  bargain  in 
writing  to  satisfy  that  statute.  After  the  making  of  the  oral  con- 
tract, however,  there  was  a  letter  written  by  the  vendee  to  the  ven- 
dors, which  contains  this  statement:  "The  goods  selected  for  ready 
money  was  the  chimney-glasses,  amounting  to  £38.  10s.  6d."  (the 
goods  in  dispute),  "which  goods  I  have  never  received,  and  have 
long  since  declined  to  have,  for  reasons  made  known  to  you  at  the 
time," — the  reason  being,  that,  in  consequence  of  the  negligence  of 
the  carrier  through  whom  they  were  sent,  the  goods  were  damaged. 
Now,  the  first  part  of  that  letter  is  unquestionably  a  note  or  memo- 
randum of  the  bargain;  it  contains  a  description  of  the  articles  sold, 
the  price  for  which  they  were  sold,  and  all  the  substantial  parts  of 
the  contract.  If  it  had  stopped  there,  there  could  be  no  dispute  as 
to  its  being  a  sufficient  note  or  memorandum  to  satisfy  the  statute. 

It  is  clear  that  the  note  or  memorandum  may  be  made  after  the 
time  at  which  the  oral  contract  takes  place;  and,  to  my  mind,  that 
which  passed  orally  between  the  parties  on  the  subject  of  the  bar- 
gain in  July,  was  in  the  nature  of  an  inchoate  contract,  and  the  sub- 
sequent letter  had  a  retroactive  effect,  making  the  contract  good  and 
binding.  The  latter  part  of  the  defendant's  letter  in  effect  says,  "I 
decline  to  take  the  goods  because  the  carrier  damaged  them  in  their 
transit;"  and  it  is  contended  on  his  part,  that  the  acknowledgment 
at  the  beginning  of  the  letter  does  not  constitute  a  sufficient  mem- 
orandum within  the  statute,  because  the  latter  part  contains  a  repudia- 
tion of  his  liability, — relying  much  on  the  passage  cited  from  my 
Brother  Blackburn's  book  on  the  Contract  of  Sale,  where  it  is  sug- 
gested that  a  subsequent  acknowledgment  in  writing  has  not  the  ef- 
fect of  making  the  contract  good,  if  it  is  accompanied  by  a  repudia- 
tion of  the  defendant's  liability  under  it.  A  case  is  referred  to,  of 
Rondeau  v.  Wyatt,  2  H.  Bl.  63,  where  an  answer  to  a  bill  of  dis- 
covery, in  which  the  defendant  admitted  the  agreement,  was  held 
not  to  preclude  him  from  taking  the  objection  that  there  was  no  note 
or  memorandum  to  satisfy  the  Statute  of  Frauds. 

We  have  adverted  to  the  authorities  cited  in  Mr.  Justice  Black- 
burn's book,  and  to  the  case  of  Rondeau  v.  Wyatt;  but  we  find  no 
decided  authority  upon  the  point  in  judgment.  In  that  state  of  the 
authorities,  we  are  remitted  to  the  Statute  of  Frauds  itself;  and, 
upon  reference  to  its  language,  we  think  the  defendant's  letter  does 
amount  to  a  sufficient  memorandum  in  writing,  and  makes  the  con- 
tract good.     The  purpose  of  the  statute  was,  to  prevent  fraud  and 


Sec.  G)  THE    NOTE   OR    MEMORANDUM  709 

perjury.  Now,  the  danger  of  perjury  in  this  case  is  effectually  pre- 
vented by  the  letter  of  the  defendant;  for.  he  distinctly  admits  that 
he  made  the  contract,  and  at  the  price  alleged.  I  do  not  consider 
that  the  defendant  intended  to  deny  his  liability  by  reason  of  the  ab- 
sence or  insufficiency  of  the  contract :  but  that  the  only  question 
which  he  intended  to  raise,  was,  whether  he  or  the  plaintiffs  should 
settle  with  the  carriers  for  the  damage  done  to  the  goods. 

I  think  that  constitutes  a  material  distinction  between  the  present 
case  and  those  cited,  in  which  the  defendant,  admitting  the  contract, 
has  rested  his  defence  on  the  non-compliance  with  the  statute.  But, 
if  there  be  no  such  distinction,  and  we  are  called  upon  to  consider 
whether  the  doctrine  suggested  in  my  Brother  Blackburn's  book  cor- 
rectly represents  the  law  upon  this  subject,  with  the  highest  respect 
for  that  clear-headed  and  highly  eminent  judge,  I  must  say  that  I 
am  unable  to  give  my  assent  to  his  proposition.  I  think  the  purpose 
of  the  Statute  of  Frauds  is  answered  by  the  defendant's  letter,  and 
that  the  plaintiffs  are  entitled  to  recover.^* 


NEWELL  V.  RADFORD. 

(Court  of  Common  Pleas,   1867.     L.  R.  3  C.  P.  52.) 

Declaration  for  non-delivery  of  32  sacks  of  flour. 

Plea,  non-assumpsit. 

The  case  was  tried  before  Kelly,  C.  B.,  at  Merionethshire  summer 
assizes,  when  it  was  proved  that  the  plaintiff'  was  a  baker,  and  the 
defendant  a  flour  dealer,  and  that  John  \\'illiams,  a  duly  authorized 
agent  of  the  defendant,  had  called  on  the  plaintiff  and  solicited  or- 
ders, and  had  made  the  following  entry  in  one  of  the  plaintiff"'s  books : 

"Mr.  Newell,  32  sacks  culasses  at  39s.,  280  lbs.,  to  wait  orders. 

"June  8.  John   Williams." 

The  plaintiff  subsequently  gave  orders  for  the  delivery  of  part 
of  the  flour;  but  the  defendant  refused  to  deliver  it.  A  correspond- 
ence was  put  in  which  had  taken  place  subsequently  to  the  purchase 
between  the  plaintiff  and  defendant  respecting  the  delivery  of  the 
flour. 

A  verdict  was  found  for  the  plaintiff  for  i20.,  and  leave  was  re- 
served to  the  defendant  to  move  to  enter  a  nonsuit  or  a  verdict,  on 
the  ground  that  there  was  no  sufficient  memorandum  of  the  contract 
to  satisfy  the  Statute  of  Frauds. 

BoviLL,  C.  J.  In  this  case  it  is  not  disputed  that  the  signature  of 
the  agent  Williams  would  be  sufficient  to  bind  the  defendant  but  it 
is  contended  that  the  written  memorandum  does  not  sufficiently  shew 
which  of  the  parties  was  the  buyer.  At  first  sight  this,  indeed,  might 
not  appear  quite  clear,  except  to  a  man  in  the  trade;    but  it  has  aK 

38  Concurring  opinions  were  delivered  by  Williams,  Willes,  and  Keating,  J  J. 


710  STATUTE    OF   FRAUDS  (Ch.  8 

ways  been  held  that  you  may  prove  what  the  parties  would  have 
understood  to  be  the  meaning  of  the  words  used  in  the  memorandum, 
and  that  for  this  purpose  parol  evidence  of  the  surrounding  circum- 
stances is  admissible,  and  the  cases  of  Macdonald  v.  Longbottom,  1 
E.  &  E.  977,  28  L.  J.  (Q.  B.)  293,  in  error  1  E.  &  E.  987,  29  L.  J. 
(Q.  B.)  256,  and  Spicer  v.  Cooper,  1  O.  B.  424,  are  authorities  to 
that   effect. 

In  this  case  it  was  shewn  that  the  plaintiff  was  a  baker,  and  that 
the  defendant  was  a  dealer  in  flour,  which  the  plaintiff  would  re- 
quire for  his  trade,  and,  looking  at  the  nature  of  the  entry  in  rela- 
tion to  those  facts,  I  think  there  can  be  no  reasonable  doubt  that  it 
was  a  sale  from  the  defendant  to  the  plaintiff.  If,  however,  there 
were  any  doubt,  looking  at  the  entry  alone,  it  is  set  at  rest  by  the 
two  letters  which  passed  between  the  plaintiff  and  defendant,  which 
sufficiently  identify  the  contract,  and  in  which  the  relative  positions 
of  the  parties  as  buyer  and  seller  is  distinctly  stated. 

WiLLES,  J.  I  am  of  the  same  opinion.  If  the  case  of  Vandenbergh 
v.  Spooner,  Law  Rep.  1  Ex.  316,  had  been  in  point,  we  -should  have 
granted  a  rule,  and  perhaps  made  it  absolute,  leaving  the  parties  to 
take  the  opinion  of  the  Court  of  Exchequer  Chamber.  I  think,  how- 
ever, that  case  is  distinguishable.  I  own  I  have  considerable  difficulty 
in  understanding  that  case,  but  if  I  do  so  rightly  it  amounts  to  this, 
that  a  written  agreement  "A.  agrees  to  buy  B.'s  horse  for  £10."  is 
not  sufficient  to  satisfy  the  Statute  of  Frauds,  because  it  cannot  be 
inferred  by  reasonable  intendment  that  B.  is  the  seller.  I  cannot 
help  observing  that  that  seems  to  be   an   extreme  case. 

The  present,  however,  does  not  come  within  its  authority,  because 
here  there  was  a  regular  entry  by  the  defendant's  agent  in  the  plain- 
tiff''s  book  describing  what  was  to  be  sold,  and  the  defendant  was 
proved  to  be  a  person  who  sold  such  goods,  and  the  plaintiff'  a  per- 
son who  would  require  to  purchase  such  goods  for  the  purpose  of 
his  trade.  Taking,  therefore,  the  entry  in  connection  with  those  cir- 
cumstances, I  think  it  sufficiently  appears  from  it  who  was  the  buyer 
and  who  the  seller  of  the  goods.  There  was,  moreover,  a  corre- 
spondence which  seems  to  be  sufficiently  connected  with  the  entry 
to  be  available,  if  necessary,  and  from  which  the  relation  of  the 
parties  as  buyer  and  seller  clearly  appears. 

Rule  refused.^® 

3  9  Concurring  opinions  were  delivered  by  Byles  and  Keating,  J.J. 
Compare  Frank  v.  Eltringham,  6.5  Miss.  281,  3   South.  655  (1SS8). 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  711 

HANSON  V.  MARSH. 
(Supreme  Court  of  Minnesota,  ISSS.     40  Minn.  1,  40  N.  W.  841.) 

Dickinson,  J.*"  The  principal  ground  of  recovery,  as  set  forth  in 
the  complaint,  and  as  presented  in  the  case,  is  the  breach  of  an  al- 
leged contract  for  the  sale  to  the  plaintiff,  by  the  defendant,  of  a 
threshing-machine,  consisting  of  a  separator  and  engine.  The  plain- 
tiff haul  a  verdict  for  damages.  It  will  only  be  necessary,  upon  this 
appeal  from  an  order  denying  a  new  trial,  to  decide  as  to  the  valid- 
ity of  the  alleged  contract  with  regard  to  the  statute  of  frauds. 

The  following  written  instrument,  signed  by  the  defendant,  is 
relied  upon  as  a  sufficient  memorandum  of  the  contract  to  answer 
the  requirements  of  the  statute : 

"Glencoe,  20th  May,  1887. 

"I,  John  Marsh,  having  this  day  sold  to  Hans  Hanson,  of  the 
town  of  Helen,  county  of  ]\IcLeod,  a  certain  threshing-machine  (of 
the  Agitator  Separator  manufacture,  and  a  twelve-horse  Minnesota 
Giant  engine),  and  do  by  this  writing  agree  to  run  with  said  Hans 
Hanson,  (assisting  him  in  the  running  of  this  machine,)  for  the 
term  of  one  month,  at  the  rate  of  two  dollars  per  day.  And  I  further 
bind  myself  not  to  purchase  another  machine  for  the  term  of  two 
3^ears,  or  to  have  anything  to  do  with  the  running  of  any  other 
machine.  John  Marsh." 

It  is  alleged  in  the  complaint,  and  further  appears  from  the  evi- 
dence in  the  case,  that  the  price  or  consideration  to  be  paid  by  the 
plaintiff',  in  performance  of  his  part  of  the  agreement,  was  $1,100. 
This  may  be  taken  to  have  been  aa  entire  price  or  consideration, 
both  for  the  sale  of  the  property  and  for  the  further  obligation  of 
the  defendant,  as  expressed  in  the  above  written  instrument.  The 
plaintiff,  however,  alleges  in  his  complaint  that  the  value  of  the 
property  agreed  to  be  sold  was  $1,400,  and  that  the  value  of  the  de- 
fendant's good-will  and  assistance  in  the  business  was  $200.  De- 
ducting the  latter  sum  from  the  whole  contract  price,  it  seems  that, 
according  to  the  estimate  of  the  plaintiff,  the  sum  which  could  be 
ascribed  as  the  price  of  the  property  agreed  to  be  sold  was  not  less 
than  $900. 

The  evidence,  too,  goes  to  show  that  the  sale  of  the  property  was 
the  principal  subject  of  the  transaction,  to  which  the  further  agree- 
ment expressed  in  the  memorandum  was  merely  incident;  and  upon 
the  whole  case  it  cannot  be  doubted  that  of  the  whole  stipulated 
price,  $1,100,  the  greater  part  represented,  in  the  contemplation  of 
both  parties,  the  price  of  the  property  agreed  to  be  sold.  Such  be- 
ing the  case,  the  agreement  involved  a  contract  for  the  sale  of  chat- 
tels "for  the  price  of  fifty  dollars  or  more,"  within  the  meaning  of 

4  0  The  statement  of  facts  is  omitted. 


712  STATUTE    OF   FRAUDS  (Ch.  8 

the  statute,  which  requires  a  note  or  memorandum  of  such  contract 
to  be  made  in  writing.  Such  a  contract  is  within  the  statute;  al- 
though it  also  embraces  some  other  agreement  to  which  the  statute 
is  not  applicable.  Harman  v.  Reeve,  18  C.  B.  587;  Irvine  v.  Stone, 
6  Cush.  (Mass.)  508.  And  see  Hodgson  v.  Johnson,  El.,  Bl.  &  El. 
685,  and  Rand  v.  Mather,  11  Cush.  (Mass.)  1,  59  Am.  Dec.  131. 

While  it  appears,  both  from  the  pleadings  and  from  the  evidence, 
that  there  was  a  definite  stipulated  price  to  be  paid  by  the  plaintiff, 
it  will  be  observed  that  the  memorandum  contains  no  statement  of 
or  allusion  to  it.  The  price  is  an  essential  element  in  a  contract  of 
sale,  and  a  memorandum  which  does  not  state  the  price, — unless, 
perhaps,  in  cases  where,  no  price  being  stipulated,  it  is  left  to  be 
measured  by  the  rule  of  reasonable  or  market  value, — is  insufficient 
to  satisfy  the  statute,  and  the  contract  is,  by  the  terms  of  the  stat- 
ute, void.  Elmore  v.  Kingscote,  5  Barn.  &  C.  583 ;  Acebal  v.  Levy, 
10  Bing.  VJd',  Goodman  v.  Griffiths,  1  Hurl.  &  N.  574;  Ide  v. 
Stanton,  15  Vt.  685,  40  Am.  Dec.  698;  Waterman  v.  Meigs,  4  Cush. 
(Mass.)  497;  Ashcroft  v.  Butterworth,  136  Mass.  511;  Stone  v. 
Browning,  68  N.  Y.  598,  604;  James  v.  Muir,  ZZ  Mich.  223 ;  Browne, 
St.  Frauds,  §  376;  1  Benj.  Sales,  p.  271,  §  251;  2  Schouler,  Pers. 
Prop.  §  492. 

Order  reversed. 


O'NEIL  V.  GRAIN. 

(Supreme  Court  of  Missouri,  187S.     67  Mo.  250.) 

Norton,  J.  This  is  a  suit  for  the  recovery  of  damages,  growing 
out  of  an  alleged  breach  of  contract  on  the  part  of  defendants,  in 
refusing  to  receive  and  pay  for  three  hundred  and  sixty  hogs,  claim- 
ed to  have  been  sold  to  them  by  plaintiff.  The  answer  denied  the 
allegations  of  the  petition,  and  interposed  the  statute  of  frauds,  al- 
leging that  the  contract  was  for  the  sale  of  personal  property,  and 
that  there  was  no  sufficient  note  or  memorandum  in  writing  of  the 
same.  Judgment  was-  rendered  for  plaintiff,  on  the  trial,  from 
which,  after  timely  motions  for  a  new  trial  and  arrest  had  been 
overruled,  defendants  have  appealed  to  this  court.  A  reversal  of  the 
judgment  is  sought  on  the  ground  that  the  court  admitted  illegal 
evidence. 

During  the  progress  of  the  trial,  a  witness,  on  behalf  of  plaintiff, 
was  permitted  to  detail  the  statements  made  to  him  by  one  Black, 
in  regard  to  the  reason  why  Blossom,  one  of  the  defendants,  would 
not  receive  and  pay  for  the  hogs,  which  plaintiff  offered  to  deliver 
under  his  contract.  This  evidence  was  objected  to,  on  the  ground 
that  it  was  mere  hearsay.  This  objection,  we  think,  should  have 
been  sustained,  and  the  evidence  rejected.  Black  was  not  a  party 
to  the  suit,  nor  were  the  statements  given  in  evidence,  made  either 


Sec.  G)  THE    NOTE   OR    MEMORANDUM  713 

in  the  presence  of  Blossom  or  any  other  of  the  defendants.  The 
evidence  elicited  from  this  witness  was  material,  inasmuch  as  it 
showed  an  admission,  on  the  part  of  Blossom,  that  he  did  not  refuse 
the  hogs  because  they  were  not  such  as  plaintiff  had  agreed  to  de- 
liver him,  but  because  the  price  had  gone  down  since  he  had  con- 
tracted for  them. 

It  is  also  argued  that  the  written  memorandum  of  the  contract, 
offered  in  evidence,  was  not  sufficient  to  take  the  case  from  the 
operation  of  the  statute  of  frauds,  and  that  parol  evidence  could 
not  be  received  to  supply  any  of  its  terms.  Parol  evidence  is  clearly 
inadmissible  to  contradict,  alter,  or  vary  a  written  contract,  but 
when  a  written  memorandum  of  a  contract  does  not  purport  to  be 
a  complete  expression  of  the  entire  contract,  or  a  part  of  it  only  is 
reduced  to  writing,  the  matter  thus  omitted  may  be  supplied  by 
parol  evidence.  Rollins  v.  Claybrook,  22  Mo.  407 ;  Moss  v.  Green, 
41  Mo.  389;  Briggs  v.  Munchon,  56  Mo.  467;  1  Greenl.  Ev.  §  284a. 
The  memorandum  offered  in  evidence,  was  as  follows : 

"Brookfield,  September  10,  1874. 

"William  O'Neil :  You  will  please  get  us  360  hogs  instead  of  250, 
if  you  can,  so  as  to  make  three  car  loads  at  your  place.  Be  care- 
ful about  the  weights.  I.  I.  Grain,  Bro.  &  Co." 

The  memorandum  is  silent  as  to  the  price  to  be  paid,  and  does 
not  purport  to  express  the  entire  contract,  and  the  evidence  offered 
to  explain  it,  in  this  particular,  being  in  no  wise  contradictory  to 
the  writing,  was,  under  the  authorities  cited,  properlv  admitted. 
Because  of  the  reception  of  illegal  evidence  as  hereinbefore  indicat- 
ed, the  judgment  will  be  reversed  and  the  cause  remanded. 

Reversed.*^ 


KRIETE  V.  THOMAS  J.  MYER  &  CO. 

(Court  of  Appeals  of  Maryland.  1883.     61  Md.  558.) 

Stone,  J.*^  Waidner  &  Co.,  as  agent  for  Kriete,  the  appellant, 
sold  to  Myer  &  Co.,  the  appellees,  a  quantity  of  canned  fruit.  The 
following  is  the  memorandum   of  sale : 

"Baltimore,   May   12,   1882. 

"Sold  to  Mess.  T.  J.  Myer  &  Co.  for  account  of  E.  W.  Kriete, 
one  thousand  (1000)  cans  3  lbs.  Standard  Peaches,  half  yellow,  next 
season's  packing,  at  1.80  per  doz.,  60  days,  or  less  11/2  per  cent,  off 
for  cash  from  date  of  delivery;  said  peaches  to  be  fully  equal  to 
his   last  season's  packing. 

"[Signed]  H.  A.  Waidner  &  Co." 

41  For  a  further  discussion  of  the  question  of  price,  see  Willistou,  Sales, 
§  103. 

4  2  Part  of  the  opinion  is  omitted. 


714  STATUTE    OF   FRAUDS  (Ch.  8 

Kriete  refused  to  deliver  the  goods,  and  upon  suit  brought  against 
him  set  up  the  following  as  his  principal  defence  to  the  action : 

That  the  written  note  or  memorandum  of  the  sale  differed  from 
the  parol  contract  in  this :  that  the  parol  agreement  fixed  a  special 
date,  (October  5,  1881,)  on  or  before  which  the  goods  were  to  be 
delivered,  and  that  the  written  note  or  memorandum,  having  omit- 
ted such  special  date,  was  faulty,  and  that  no  recovery  could  be 
therefore  had  upon  it.     This  is  the  contention  of  the  appellant. 

On  the  other  hand  the  appellees  insist  that  no  time  for  the  deliv- 
ery of  the  goods  was  specified  or  mentioned  in  the  parol  agreement 
and  none  mentioned  in  the  note  or  memorandum,  and  that  the  mem- 
orandum of  the  sale  is  amply  sufficient  to  satisfy  the  requirements 
of  the  Statute  of  Frauds. 

It  was  conceded  in  the  argument  of  this  case.  that,  if  the  written 
note  required  by  the  Statute,  contained  all  the  substantial  agreement 
made  by  parol,  the  note  or  memorandum  was  a  sufficient  agreement. 
But  whether  it  is  conceded  or  not  such  is  clearly  the  law. 

It  is  not  necessary  to  the  validity  of  such  an  agreement  that  the 
time  of  the  delivery  should  be  stated.  If  no  time  is  stated  for  the 
delivery  of  the  goods  sold,  then  the  law  will  imply  that  it  is  the 
duty  of  the  seller  to  deliver  them  in  a  reasonable  time ;  and  what 
is  a  reasonable  time  must  depend  upon  the  circumstances  surround- 
ing the  case,  and  the  nature  of  the  article  dealt  in.  Or  if  there  is 
an  established  custom  among  merchants  who  deal  in  the  particular 
goods  sold,  regulating  the  time  of  such  delivery,  the  delivery  will 
be  controlled  and  regulated  by  such  custom.  2  Benjamin  on  Sales, 
891;  Williams,  etc.,  v.  Woods,  Bridges  &  Co.,  16  Md.  220;  Salmon 
Falls  Manu.  Co.  v.  Goddard,  14  How.  446,  14  L.  Ed.  493. 

We  have  then  in  the  note  or  memorandum  before  us,  all  the  stip- 
ulations necessary  for  a  complete  contract  of  sale,  and  which  would 
certainly  be  sufficient  to  entitle  the  appellees  to  recover  on  provided 
that  the  note  or  memorandum  omitted  no  stipulation  contained  in 
the  verbal  agreement  of  the  bargain  itself.  The  memorandum  re- 
quired by  the  statute  not  being  in  itself  the  sale,  but  only  a  memoran- 
dum of  it.  In  addition  to  the  written  memorandum,  the  appellees 
oft"ered  the  evidence  both  of  Waidner  and  Shryver,  who  made  the 
verbal  agreement,  that  nothing  whatever  was  said  in  such  agreement 
about  the  time  of  delivery,  and  which  evidence  tended  to  prove  that 
there  was  no  variance  between  the  verbal  bargain  and  the  written 
note  thereof. 

But  the  appellant  having  offered  evidence  tending,  as  he  claims, 
to  show  that  there  was  a  stipulation  in  the  parol  agreement  for  a 
special  time  for  the  delivery  of  the  goods,  to  wit,  on  or  before  the 
5th  of  October,  1881,  or  in  the  months  of  August  or  September,  1881, 
and  that  such  stipulation  not  being  in  the  written  memorandum, 
asked  the  Court  to  instruct  the  jury  that  if  they  found  such  to  be  the 
fact,   the   appellees   could   not    recover.      This   instruction    the    Court 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  715 

gave,  and  in  giving  it,  the  Court  gave  the  appellant  the  benefit  of  all 
the  law  that  he  asked  for  in  this  branch  of  his  case,  and  all  that  he 
was  entitled  to. 

The  first  three  prayers  of  the  defendant  each  present  this  ques- 
tion of  fact  to  be  decided  by  the  jury,  and  the  Court  told  the  jury 
most  emphatically  and  in  various  forms  of  expression,  that  if  they 
did  find  that  in  the  verbal  agreement  on  or  before  the  5th  of  October, 
1881,  or  in  August  or  September,  1881,  was  the  time  fixed  for  de- 
livery, that  then  the  appellees  were  not  entitled  to  recover,  as  that 
date  was  not  included  in  the  written  memorandum.  This  was  the 
whole  contention  of  the  appellant,  and  the  jury  could  not  possibly 
mistake  the  instructions  of  the  Court  on  that  point  granted  at  the  re- 
quest of  the  appellant.     *     *     * 

The  prayer  of  the  plaintififs  marked  one  and  a  half  should  not 
however  have  been  granted.  That  prayer  instructed  the  jury  that 
if  they  found  that  the  verbal  agreement  did  fix  a  time  for  delivery, 
that  if  that  time  was  the  same  time  fixed  by  the  general  and  uniform 
usage  in  the  trade  of  such  goods,  that  then  it  was  immaterial  whether 
such  time  was  specified  in  the  written  memorandum  or  not. 

This  was  an  error.  It  was  not  necessary,  as  we  have  already  said, 
that  any  time  of  delivery  should  be  mentioned  in  the  written  mem- 
orandum, provided  no  verbal  agreement  was  made  as  to  delivery,  as 
in  such  case  the  law  would  fix  the  time.  But  if  a  time  was  fixed  in 
the  bargain  itself,  it  must  be  incorporated  in  the  note.  1  Benjamin 
on  Sales,  277. 

But  it  has  been  repeatedly  held  by  this  Court  that  not  only  must 
an  instruction  be  erroneous,  but  that  the  appellant  must  be  prejudiced 
thereby  before  it  can  be  made  the  ground  of  reversal.  The  cases  of 
Young  v.  Mertens,  27  Md.  114,  and  Parker  v.  Wallis,  60  Md.  15, 
45  Am.  Rep.  703,  are  among  a  number  of  cases  on  this  point. 

Taking  all  the  instructions  granted,  and  all  the  evidence  in  the 
case  before  us,  we  cannot  perceive  that  the  verdict  of  the  jury  could 
have  in  any  wise  depended  upon,  or  was  influenced  by  the  erroneous 
instruction.     *     *     * 

Judgment  affirmed.*^ 

*3  Compare  Williams  v.  Robinson,  7.S  Me.  186,  40  Am.  Rep.  352  (1882),  in 
which  the  court  said:  "And  when  a  memorandum  is  made  and  signed,  and 
delivered  between  the  parties  as  and  for  a  complete  memorandum  of  the 
essential  terms  of  a  contract,  and  it  is  capable  of  a  clear  and  intelligible 
exposition,  it  is  conclusive  between  the  parties,  and  parol  evidence  is  in- 
competent to  contradict  or  vary  its  terms  or  construction ;  and  if  in  fact 
some  of  the  conditions  actually  made  be  omitted  from  it,  the  party  defendant 
cannot  avail  himself  of  them." 


716  STATUTE    OP   FRAUDS  (Cll.  8 

NORTH  &  CO.  V.  MENDEL  &  BRO. 
(Supreme  Court  of  Georgia,  18S4.     73  Ga.  400.  54  Am.  Rep.  S79.) 

HaIvL,  J.  The  plaintiffs  brought  suits  against  M.  Mendel  &  Bro., 
a  firm  composed  of  Meyer  Mendel  and  Joseph  Mendel,  upon  an  ac- 
count for  five  boxes  pork  bellies,  124  pieces,  2,817  pounds,  at  8  cents, 
$225.36,  sent  from  Boston  on  the  17th  of  January,  1884  to  Savan- 
nah, per  steamship  City  of  Columbus.  The  goods  were  sent  upon 
the  order  of  George  C.  Freeman,  who  was  alleged  by  the  plaintiffs 
to  be  a  broker,  but  who  was  regarded  by  the  defendants  as  the  plain- 
tiffs' agent,  and  dealt  with  by  them,  according  to  their  evidence,  in 
the  latter  character.  This  shipment  was  made  upon  a  telegram, 
sent  from  Savannah  to  Boston,  on  the  16th  day  of  January,  1884, 
by  George   C.   Freeman   to   plaintiffs,   which   was   as    follows : 

"Mendel  five  bellies,  eight.  Ehrlich  offers  seven-eights  ten  bellies 
lighter   than  last." 

In  Freeman's  entry  book,  under  this  date,  the  following  appears, 
as  was  proved  in  his  own  handwriting:  "Sold  account  C.  H.  North 
&  Co.,  Mendel,  5  bellies,  8." 

This  telegram,  together  with  the  entry,  was  the  only  note  or  mem- 
orandum in  writing  of  the  contract  sued  on.  The  steamship,  shortly 
after  sailing,  was  wrecked,  and  her  cargo  was  lost.  The  goods  never 
reached  the  defendants.  Under  the  evidence  in  the  case,  the  jury 
found  for  the  defendants,  and  a  motion  made  for  a  new  trial  was 
overruled.  On  the  judgment  overruling  this  motion,  error  is  as- 
signed. 

The  defence  set  up  was  that  the  suit  was  upon  a  contract  for  the 
sale  of  goods  amounting  to  fifty  dollars  and  more;  that  the  defend- 
ants never  accepted  and  received  any  part  of  the  same ;  gave  nothing 
in  earnest  or  part  payment  to  bind  the  bargain ;  and  that  the  prom- 
ise was  not  in  writing  and  signed  by  them,  nor  by  any  person  author- 
ized by  them  to  do  so.  Code,  §  1950,  subsec.  7.  It  is  conceded  that 
if  Freeman  did  not  act  as  a  broker  in  the  transaction,  and  if  the 
word  "Mendel"  in  his'  entry  book  is  not  the  signature  of  defend- 
ants, which  he  was  authorized  to  make,  and  if  the  delivery  of  the 
goods  on  board  the  vessel  consigned  to  them,  was  not  an  acceptance 
and  delivery  of  the  same  to  them,  then  they  are  not  liable  under 
this  section  of  the  Code,  and  their  defence  must  prevail.  The  ver- 
dict seems,  for  these  reasons,  to  have  been  sustained  by  the  lower 
court,  the  evidence  on  both  points  being  conflicting. 

The  testimony  of  the  defendants,  which  the  jury  had  a  right  to 
credit,  showed  that  they  did  not  then,  and  had  never  dealt  with  Free- 
man as  a  broker,  but  had  always  dealt  with  him  as  the  agent  of  the 
plaintiffs,  and  had  never  given  him  authority  to  sign  their  names  to 
that  or  any  other  promise  in  writing;  that  Freeman  came  to  them  on 
the  occasion    in   question,   as  he  had  usually   done  on   former   occa- 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  717 

sions,  soliciting  orders  for  the  plaintiffs,  as  whose  agent  they  re- 
garded and  treated  with  him.  On  the  other  point,  they  showed  that 
they  dealt  with  the  plaintiffs  for  cash,  and,  according  to  their  usual 
course  of  dealing,  goods  ordered  were  never  considered  as  belonging 
to  them  until  delivered  at  their  place  of  business  and  paid   for. 

The  plaintiffs'  evidence  tended,  rather  inferentially  than  directly, 
to  rebut  both  these  positions,  so  that,  if  there  were  nothing  else  in 
the  case,  we  could  not  say  that  there  was  not  evidence  to  sustain 
the  verdict,  and  that  the  judge  did  not  exercise  a  sound  discretion  in 
refusing  to  set  it  aside  and  to  grant  a  new  trial. 

Admitting  that  the  last  of  these  points  is  with  the  defendants, 
then  the  plaintiffs  insist  that  Freeman  was  a  broker ;  that  he  ordi- 
narily acted  in  that,  and  in  no  other,  character;  and  that  defendants 
knew  this,  and  must  have  dealt  with  him  in  that  capacity,  and  have 
given  him  authority  to  bind  them  by  signing  their  names  to  a  prom- 
ise in  writing,  which  he  did  by  this  entry  in  his  book;  that  while 
it  is  true  their  names  were  not  subscribed  by  Freeman  to  the  entry, 
still,  if  it  appeared  anywhere  in  the  same,  that  was  sufficient  to  bind 
them.  Much  extraneous  evidence  was  offered  and  received,  over 
the  objection  of  defendants,  to  explain  and  render  intelligil^le  both 
this  cabalistic  entry  and  telegram.  To  the  introduction  of  this  the 
defendants  objected,  and  their  objection  being  overruled,  they  filed 
exceptions  to  the  decision,  and  have  brought  it  here  for  review. 

We  are  of  opinion  that  this  memorandum,  taken  either  by  itself 
or  in  connection  with  the  telegram,  does  not  satisfy  the  requirements 
of  the  statute;  without  such  evidence,  it  would  be  impossible  to 
connect  these  papers  as  forming  parts  of  the  memorandum  of  the 
agreement  relied  on.  The  statute  does  not  require  that  all  the  terms 
of  the  contract  should  be  agreed  to  or  written  down  at  one  and  the 
same  time,  nor  on  one  piece  of  paper;  but  where  the  memorandum 
of  the  bargain  is  found  on  separate  pieces  of  paper,  and  where  these 
papers  contain  the  whole  bargain,  they  form  together  such  a  mem- 
orandum as  will  satisfy  the  statute,  provided  the  contents  of  the 
signed  paper  make  such  reference  to  the  other  written  paper  or 
papers  as  to  enable  the  court  to  construe  the  whole  of  them  together 
as  containing  all  the  terms  of  the  bargain.  If,  however,  it  be  neces- 
sary to  adduce  parol  evidence,  in  order  to  connect  a  signed  paper 
with  others  unsigned,  by  reason  of  the  absence  of  any  internal  evi- 
dence in  the  signed  paper  to  show  a  reference  to,  or  connection 
with,  the  unsigned  papers,  then  the  several  papers  taken  together 
do  not  constitute  a  memorandum  in  writing  of  the  bargain,  so  as  to 
satisfy  the  statute.  1  Benjamin  on  Sales,  §  220,  and  note  24.  Smith 
V.  Jones,  66  Ga.  338,  42  Am.  Rep.  72,  is  upon  this  question,  directly 
in  point. 

But  supposing  the  entry  and  telegram  to  be  united  by  the  internal 
evidence  furnished  by  themselves,  then  they  would  not  satisfy  the 
statute,  because  they  fail  to  show  what  property  was  contracted  for. 


718  STATUTE    OF   FRAUDS  (Ch.  8 

what  price  was  agreed  upon,  and  the  parties  to  whom  it  was  sold. 
"Sold  account  of  C.  H.  North  &  Co.,  Mendel,  5  bellies  8."  as  ex- 
pressed in  the  entry,  or  as  expressed  in  the  telegram,  "Mendel,  five 
bellies,  eight;  Ehrlich  offers  seven-eights,  ten  bellies  lighter  than 
last,"  contain  matter  not  only  ambiguous,  but  unintelligible  to  any 
one  but  Freeman  and  the  plaintiffs,  without  explanation,  or  rather 
translation,  by  a  resort  to  parol  evidence,  and  this  was  the  very 
thing  the  statute  was  enacted  to  prevent,  in  order  to  take  away  all 
temptation  to  commit  either  fraud  or  perjury.  1  Benj.  §  210.  and 
citations  in  note  (1)  and  7  there;  Id.  §§  233,  236,  247,  249-252,  in- 
clusive. By  reason  of  these  deficiencies,  this  alleged  contract  was 
imperfect,  and  could  only  be  made  perfect  by  a  resort  to  parol  tes- 
timony, which  was  incompetent  for  such  a  purpose.  Smith  v.  Jones, 
supra.  "Mendel,"  of  itself  and  unaided  by  other  evidence,  could 
not  be  taken  as  the  firm  name  of  the  defendants,  while  "5  bellies,  8" 
is,  to  the  last  degree,    enigmatical,   if   not  wholly   unintelligible. 

Waiving  any  question  as  to  the  commodity  sold,  both  the  quan- 
tity and  the  price  are  wholly  indefinite ;  in  these  respects  there  is 
no  ambiguity,  either  latent  or  patent,  which,  in  any  case,  could  be 
explained  by  a  resort  to  parol  evidence,  but  the  uncertainty  is  great 
and  manifest,  and  it  has  not  been  shown  that  the  terms  employed 
here  are  in  accordance  with  any  mercantile  usage  or  custom  in  ref- 
erence to  which  the  contract  was  made.  The  contract  is  therefore 
faulty  in  failing  to  set  out  the  purchaser,  the  quantity  and  price  of 
the  article  sold ;  these  are  all  essential  ingredients,  and  should  have 
appeared,  as  we  have  seen,  in  the  memorandum  of  the  bargain. 

It  was  remarked  shortly  after  the  passage  of  the  act  of  29  Car. 
II,  for  the  prevention  of  frauds  and  perjuries,  from  which  our  law 
is  taken,  with  the  modifications  since  made  therein  by  the  interpre- 
tation of  the  courts  and  judges,  by  a  venerable  and  distinguished 
judge,  that  every  line  of  that  celebrated  statute  was  worth  a  subsidy 
to  the  people  of  England,  and  many  learned  and  able  administrators 
of  the  law  have  expressed  regret  that  the  force  and  efficiency  of  this 
act  have  been  impaired  by  the  least  departure  foni  its  plain  provi- 
sions, and  by  construing  it  so  as  to  introduce  exceptions  not  author- 
ized by  its  letter.  Some  of  these  exceptions  are  embodied  in  our 
Code,  and,  so  far  as  they  are  there  recognized,  we  have  no  power  to 
reject  them;  but  we  will  not  add  others  by  construction,  to  avoid 
what  may  appear  to  be  either  harsh  or  inconvenient. 

We  repeat,  with  all  the  emphasis  that  the  unanimous  judgment  of 
this  bench  can  give  to  it,  what  was  said  by  the  present  chief  justice 
in  pronouncing  the  judgment  of  the  court  in  Smith  v.  Jones,  supra, 
that  "the  rule  should  not  be  relaxed  now,  when  the  flood-gates  are 
open  wide  as  to  the  competency  of  witnesses,  and  the  only  break- 
water left  is  to  put  this  class  of  contracts,  and  others  of  similar 
character,  in  writing."  The  case  in  hand  falls  under  no  exception 
recognized  by  our  law,  and  the  testimony  objected  to  on  the  trial  by 


Sec.  6)                                     THE    NOTE   OR    MEMORANDUM  719 

the   defendants   should   have   been    repelled.      Without  it   there   was 

nothing  to  rest  a  verdict  on  in  favor  of  the  plaintiffs.  Whether  the 
result  of  the  trial   was  attained  by   proper   methods,   it   is   sufficient 

that  the  verdict   is   necessarily  correct,   and  the   court  was   right   in 
allowing  it  to  stand. 
Judgment  aflirmed. 


BIBB  V.  ALLEN. 

(Supreme  Court  of  United  States.  I'^O-l.     149  U.   S.  4S1,  13  Sup.  Ct.  950.  37 

L.  Ed.  819.) 

The  defendants  in  error,  citizens  of  the  states  of  New  York  and 
Tennessee,  and  doing  business  in  the  city  of  New  York  as  brokers, 
commission  merchants,  and  cotton  factors,  under  the  firm  name  and 
style  of  Richard  H.  Allen  &  Co.,  brought  this  action  of  assumpsit  in 
February,  1887,  against  the  plaintiff  in  error  and  one  Hopkins,  citizens 
of  Alabama,  as  partners  under  the  name  of  B.  S.  Bibb  &  Co.,  to  re- 
cover the  sum  of  $20,023.50  with  interest,  which  was  claimed  as 
commissions  for  services  rendered,  and  money  paid  and  advanced  by 
them  for  and  at  the  request  of  the  defendants  in  selling,  for  their  ac- 
count, and  as  their  agents,  cotton  for  future  delivery,  according  to  the 
rules  and  regulations  of  the  New  York  Cotton  Exchange,  in  the  city  of 
New  York.**     *     *     * 

Mr.  Justice  Jackson  (after  stating  the  facts  as  above).  *  *  * 
It  is  next  urged  on  behalf  of  the  plaintiff  in  error  that  the  contracts 
for  the  sale  of  the  cotton  were  void  under  the  statute  of  frauds  of 
the  state  of  New  York,  because  there  was  no  sufficient  note  or  memo- 
randum in  writing  of  the  transactions,  signed  by  the  parties  to  be 
charged  thereby.  We  are  of  opinion  that  this  contention  cannot  be 
sustained  under  the  facts  of  the  case. 

After  agreeing  upon  the  terms  in  which  the  business  should  be 
transacted,  and  the  use  of  Shepperson's  code  of  cipher,  B.  S.  Bibb 
&  Co.,  on  November  9,  10,  and  11,  1886,  telegraphed  orders  to  the 
plaintiffs  to  sell  for  them  in  the  aggregate  10,000  bales  of  cotton  for 
January  and  February  delivery.  These  dispatches  were  sent  accord- 
ing to  the  form  of  Shepperson's  code,  and  directed  the  sales  for  de- 
livery for  account  of  designated  names  such  as  "Albert,"  "Alfred," 
"Alexander,"  "Amanda,"  "Andrew,"  "Winston,"  etc.,  which  names 
were  intended  and  understood  to  represent  the  firm  name  of  B.  S. 
Bibb  &  Co.  Thus,  under  date  of  November  9,  1886,  B.  S.  Bibb  & 
Co.  telegraphed  to  plaintiffs :  "If  bureau  report  is  considered  favor- 
able to-morrow  sell  for  January  delivery  1,000  bales  cotton  account 
Albert.  Sell  for  February  delivery  1,000  bales  account  Alfred.  Sell 
for  January  delivery  1,000  bales  account  Alexander.     Sell  for  January 

*i  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


720  STATUTE    OF   FRAUDS  (Ch.  8 

delivery  500  bales  cotton  account  Andrew.  Act  promptly  if  favor- 
able." So,  under  date  of  November  10,  1886,  they  telegraphed:  "If 
market  opens  as  high  or  higher  to-morrow  sell  for  January  delivery 
1,500  bales  cotton  account  Winston.     Keep  us  thoroughly  posted." 

These  dispatches,  as  well  as. others  of  a  similar  character  of  later 
dates,  meant  "sell  for  January  or  February  delivery  the  designated 
number  of  bales  on  account  of  B.  S.  Bibb  &  Company,"  and  had  at- 
tached to  them,  by  the  express  terms  of  Shepperson's  code,  the  un- 
derstanding and  agreement,  already  quoted,  that  the  orders  were  to 
be  subject  in  every  respect  to  the  by-laws  and  rules  of  the  cotton  ex- 
change of  New  York,  with  the  additional  terms  read  into  the  tele- 
grams, and  as  a  part  thereof,  the  stipulation  that  the  sales  were  to  be 
subject  to  said  by-laws  and  rules  in  reference  to  the  future  delivery 
of  cotton. 

The  plaintiffs  executed  these  orders  promptly  as  they  were  received. 
In  the  execution  of  the  orders  they  made  what  are  called  "slip  con- 
tracts" in  duplicate,  one  copy,  signed  by  the  purchaser,  being  deliv- 
ered to  the  plaintiffs,  and  the  other,  signed  by  the  plaintiffs  as  bro- 
kers, being  given  to  the  purchaser.  There  were  19  sales  of  cotton  to 
various  persons  named  in  these  "slip  contracts,"  which  were  in  the 
following  form: 

New  York,  Nov,  10,  1886. 

'B.  10,  ac.  Albert. 

10     "     Alexander. 
5     "     Andrew. 

Seller, .       ' 

Buyer,  Zerega  &  White. 

On  contract,  subject  to  rules  and  regulations  of  New  York  Cot- 
ton Exchange. 
Twenty-five  hundred  bales  cotton. 
Jan.  1  delivery. 
Price,  8.99. 
X  Per  Z.  &  W^hite,  seventy-five." 

These  contracts  dift'ered  only  in  date,  in  the  name  of  the  purchaser, 
in  the  quantity  of  cotton  sold,  and  the  price  thereof.  As  each  sale 
was  thus  made,  it  was  reported  promptly  by  the  plaintiffs  to  the  de- 
fendants, both  by  letter  and  by  telegram,  giving  price,  and  stating  that 
the  orders  to  sell  were  executed.  So  that  the  defendants  were  kept 
accuratelv  advised  of  each  transaction  made  in  pursuance  of  their 
order. 

In  addition  to  the  "slip  contracts"  in  the  form  described  above  de- 
livered by  the  plaintiff's  to  the  purchasers  of  the  cotton  sold,  and  re- 
ceived by  them  from  the  buyers  of  cotton,  the  sales  were  entered 
upon  the  books  of  the  plaintiff's  in  conformity  with  such  contracts. 
These  "slip  contracts"  show  upon  their  face  that  the  purchaser  named 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  721 

therein  bought  cotton,  sold  for  account  of  the  name  adopted  to  rep- 
resent B.  S.  Bibb  &  Co.  They  gave  the  price,  and  the  number  of 
bales,  and  the  time  of  delivery.  They  were  in  the  form  prescribed  by 
the  rules  and  regulations  of  the  cotton  exchange,  and  constitute  bought 
and  sold  notes,  which,  taken  together,  as  they  should  be,  constitute  a 
sufficient  memorandum  in  writing  of  the  contract  between  the  bro- 
kers, or  their  principal,  and  the  purchasers  of  the  cotton,  to  meet  the 
requirements  of  the  statute  of  frauds.  Peabody  v.  Speyers,  56  N.  Y. 
230,  236,  237;  Newberry  v.  Wall,  84  N.  Y.  576,  580;  Butler  v.  Thom- 
son, 92  U.  S.  412,  23  L.  Ed.  684;  Beckwith  v.  Talbot,  95  U.  S.  289, 
24  L.  Ed.  496;  Ryan  v.  U.  S.,  136  U.  S.  68,  83,  10  Sup.  Ct.  913,  34 
L.  Ed.  447;  Bayne  v.  Wiggins,  139  U.  S.  210,  11  Sup.  Ct.  521,  35 
L.  Ed.  144. 

In  this  latter  case  this  court,  speaking  by  Mr.  Justice  Harlan,  said : 
"The  principle  is  well  established  that  a  complete  contract,  binding 
under  the  statute  of  frauds,  may  be  gathered  from  letters,  writings, 
and  telegrams  between  the  parties  relating  to  the  subject-matter  of 
the  contract,  and  so  connected  with  each  other  that  they  may  be  fairly 
said  to  constitute  one  paper  relating  to  the  contract."  So  in  Benjamin 
on  Sales,  (Amer.  Ed.  §  296,)  after  a  review  of  the  authorities,  both 
English  and  American,  it  is  stated :  "The  bought  and  sold  notes,  when 
they  correspond  and  state  all  of  the  terms  of  the  bargain,  are  com- 
plete and  sufficient  evidence  to  satisfy  the  statute,  even  though  there 
be  no  entry  in  the  broker's  books,  or,  what  is  equivalent,  only  an  un- 
signed entry."  Goom  v.  Aflalo,  6  Barn.  &  C.  117;  Sievewright  v. 
Archibald,  17  Q.  B.  104,  115;  Thompson  v.  Gardiner,  1  C.  P.  Div. 
7n .  Such,  too,  is  the  rule  in  New  York,  as  shown  by  the  earlier  cas- 
es of  Peltier  v.  ColHns,  3  Wend.  459,  20  Am.  Dec.  711;  Davis  v. 
Shields,  26  Wend.  341. 

The  bought  and  sold  notes  in  question  in  this  case,  called  "slip  con- 
tracts," when  read  in  the  light  of  the  rules  and  regulations  of  the  cot- 
ton exchange,  and  considered  in  connection  with  the  letters  and  tele- 
grams between  the  parties,  constitute  a  sufficient  note  or  memorandum 
in  writing  of  the  transactions  to  satisfy  the  requirements  of  the  stat- 
ute of  frauds.  It  is  no  valid  objection  to  these  "slip  contracts,"  exe- 
cuted in  duplicate,  that  the  sales  purported  to  be  made  on  account  of 
"Albert,"  "Alfred,"  "Alexander,"  "Amanda,"  and  "Winston,"  etc., 
which  names  were  adopted  by  the  defendants,  and  which  represented 
them  and  their  account.  Parol  evidence  was  clearly  competent  to 
show  that  these  fictitious  names,  which  defendants  had  adopted,  rep- 
resented them  as  the  parties  for  whose  account  the  sales  were 
made.     *     *     * 

WooDw  Sales — 46 


722  STATUTE    OF   FRAUDS  (Ch.  8 

NEW  ENGLAND  DRESSED  MEAT  &  WOOL  CO.  v.  STAND- 
ARD WORSTED  CO. 

(Supreme  Judicial   Court  of  Massachusetts.     Suffolk,   1896.     165   Mass.   328, 
43  N.  E.  112,  52  Am.  St.  Eep.  516.) 

Contract,  to  recover  the  price  of  5,014  pounds  of  "F  C  wool," 
alleged  to  have  been  sold  by  the  plaintiff  to  the  defendant.  The 
answer,  among  other  defences,  set  up  the  statute  of  frauds.  At  the 
trial  in  the  Superior  Court,  before  Mason,  C.  J.,  the  jury  returned 
a  verdict  for  the  plaintiff;   and  the  defendant  alleged  exceptions. 

Knowuton,  J.*5  *  *  *  'pj^g  defendant  contended  that  there 
was  no  sufficient  memorandum  of  the  contract  as  required  by  the 
statute  of  frauds.**'  It  is  immaterial  that  the  defendant's  name  ap- 
pears in  the  body  of  the  memorandum  instead  of  as  a  signature 
at  the  end  of  it  and  that  the  name  was  written  by  the  defendant's 
agent  and  broker  instead  of  by  one  of  its  officers.  Hawkins  v. 
Chace,  19  Pick.  502;  Coddington  v.  Goddard,  16  Gray,  436;  Clason 
V.  Bailey,  14  Johns.  (N.  Y.)  484;  Tourret  v.  Cripps,  48  Law  J.  Ch. 
(N.  S.)  567. 

The  quantity  given  in  the  statement  of  the  goods  to  be  manufac- 
tured is  merely  an  estimate,  or  at  most  a  limitation,  and  the  lan- 
guage creates  no  uncertainty  in  regard  to  the  manufactured  goods. 
Brawley  v.  U.  S.,  96  U.  S.  168-172,  24  L.  Ed.  622.  The  most  doubt- 
ful question  arising  on  the  memorandum  is  whether  the  words, 
■'about  2.000  to  2,500  lbs.  F.  C."  taken  in  connection  with  the 
words  following,  "and  all  they  make  for  thirty  days,"  etc.,  is  a  suffi- 
cient designation  of  the  property  sold.  The  rule  is  that  the  goods 
sold  must  be  designated  in  the  writing,  and  cannot  be  shovv^n  by 
parol.  May  v.  Ward,  134  Mass.  127;  Waterman  v.  Meigs,  4  Cush. 
497;  Pulse  v.  Miller,  81  Ind.  190;  Holmes  v.  Evans,  4S  Miss.  247, 
12  Am.  Rep.  372;  Eggleston  v.  Wagner,  46  Mich.  610,  10  N.  W. 
37.  But  we  have  no  doubt  that  the  meaning  of  the  letters  "F.  C," 
which  are  technical  abbreviations  used  in  the  wool  trade,  may  be 
shown  by  parol,  as  well  when  they  appear  in  a  memorandum  relied 
on  under  the  statute  of  frauds  as  in  any  other  writing. 

While  parol  evidence  is  not  competent  to  contradict  or  vary  the 
terms  of  such  a  memorandum  to  show  what  is  intended,  we  are 
of  opinion  that  the  situation  of  the  parties  and  the  surrounding  cir- 
cumstances at  the  time  when  the  contract  was  made  may  be  shown 
to  apply  the  contract  to  the  subject-matter.     Upon  this  point  the 

*5  Part  of  the  opinion  is  omitted. 

46  The  memorandum,  which  was  made  by  one  Pratt,  was  as  follows:  "Mar. 
24/93.  Bought  of  Kew  Eng  D  M  &  W  Co  about  2000  to  2500  lbs  F  C  and 
all  they  make  for  thirty  days  say  up  to  10.000  to  15,000  lbs  at  40  cts.  net 
cash  1  %  brokerage  to  me  for  %  Standard  Worsted  Co." 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  723 

decision  in  Macdonald  v.  Longbottom,  1  El.  &  El.  987,  which  was 
concurred  in  by  all  the  judges  sitting  in  the  exchequer  chamber,  is 
an  authority  which  fully  covers  the  present  case.  When  it  is  shown 
who  and  where  the  parties  were  at  the  time  of  making  the  contract, 
and  what  property  the  plaintiff  had  on  hand  of  the  kind  described, 
it  is  clear,  without  more,  that  the  memorandum  referred  to  the 
2,443  pounds  of  wool  on  hand,  recently  manufactured,  and  to  the 
additional  amount  which  might  be  manufactured  within  the  30 
days.  See  Mead  v.  Parker,  115  Mass.  413,  15  Am.  Rep.  110;  Hurley 
V.  Brown,  98  Mass.  545,  96  Am.  Dec.  671;  Scanlan  v.  Geddes,  112 
Mass,  15;  Slater  v.  Smith,  117  Mass.  96;  Nichols  v.  Johnson,  10 
Conn.  192;  Waring  v.  Ayres,  40  N.  Y.  357;  Colerick  v.  Hooper,  3 
Ind.  316,  56  Am.  Dec.  505.     *     *     * 


HIGGINS  et  al.  v.  SENIOR. 
(Court  of  Exchequer,  1S41.     8  Mees.  &  W.  834.) 

Argued  before  Parke,  Alderson,  Gurney,  and  RolEE,  BB. 

Parke,  B.*'^  The  question  in  this  ease,  which  was  argued  before 
us  in  the  course  of  the  last  term,  may  be  stated  to  be,  whether  in  an 
action  on  an  agreement  in  writing,  purporting  on  the  face  of  it  to 
be  made  by  the  defendant,  and  subscribed  by  him,  for  the  sale  and 
delivery  by  him  of  goods  above  the  value  of  ilO,  it  is  competent 
for  the  defendant  to  discharge  himself,  on  an  issue  on  the  plea  of 
non  assumpsit,  by  proving  that  the  agreement  was  really  made  by 
him  by  the  authority  of  and  as  agent  for  a  third  person,  and  that 
the  plaintiff  knew  those  facts,  at  the  time  when  the  agreement  was 
made  and  signed.  Upon  consideration,  we  think  that  it  was  not : 
and  that  the  rule  for  a  new  trial  must  be  discharged. 

There  is  no  doubt,  that  where  such  an  agreement  is  made,  it  is 
competent  to  show  that  one  or  both  of  the  contracting  parties  were 
agents  for  other  persons,  and  acted  as  such  agents  in  making  the 
contract,  so  as  to  give  the  benefit  of  the  contract  on  the  one  hand 
to  (Garrett  v.  Handley,  4  B.  &  Cr.  664;  Bateman  v.  Phillips,  15  East, 
272),  and  charge  with  liability  on  the  other  (Paterson  v.  Gandasequi, 
15  East,  62),  the  unnamed  principals:  and  this,  whether  the  agree- 
ment be  or  be  not  required  to  be  in  writing  by  the  Statute  of 
Frauds :  and  this  evidence  in  no  way  contradicts  the  written  agree- 
ment. It  does  not  deny  that  it  is  binding  on  those  whom,  on  the 
face  of  it,  it  purports  to  bind ;  but  shows  that  it  also  binds  another, 
by  reason  that  the  act  of  the  agent,  in  signing  the  agreement,  in 
pursuance  of  his  authority,  is  in  law  the  act  of  the  principal. 

But,  on  the  other  hand,  to  allow  evidence  to  be  given  that  the 

4T  The  statemeut  of  facts  and  part  of  the  opiuiou  are  omitted. 


724  STATUTE    OF   FRAUDS  (Cll.  S 

party  who  appears  on  the  face  of  the  instrument  to  be  personally 
a  contracting  party,  is  not  such,  would  be  to  allow  parol  evidence  to 
contradict  the  written  agreement ;    which  cannot  be  done.     *     *     * 


JOHNSON  &  MILLER  v.  BUCK. 

(Supreme  Court  of  New  Jersey,  1ST2.     35  N.  J.  Law  33S,  10  Am.  Rep.  243.) 

Depue,  J.  *  *  *  *^  In  sales  of  real,  as  well  as  personal  prop- 
erty, the  auctioneer,  as  between  the  vendor  and  purchaser,  is  the 
agent  of  both  parties.  In  an  action  by  either  against  the  other, 
the  signature  of  the  defendant's  name  made  by  the  auctioneer  at 
the  time,  of  the  sale,  is  a  sufficient  signing  within  the  statute. 
Emerson  v.  Helis,  2  Taunt.  38;  White  v.  Procter,  4  Taunt.  209; 
Alews  V.  Carr,  1  H.  &  N.  484;  Kennvs  v.  Procter.  3  V.  &  Beames 
S7;  ^IcComb  v.  Wright,  4  Johns.  Ch.  (N.  Y.)  659;  First  Baptist 
Church  V.  Bigelow,  16  Wend.  (N.  Y.)  28;  Davis  v.  Rowell,  2  Pick. 
(Mass.)  64,  13  Am.  Dec.  398;  Morton  v.  Dean,  13  Mete.  (Mass.) 
385. 

The  agent,  to  make  the  signature,  must  be  some  third  person. 
Neither  of  the  contracting  parties  can  be  agent  for  the  other.  A 
signature  by  the  vendor  or  purchaser,  of  the  name  of  the  other,  is 
not  a  sufficient  signing.  Wright  v.  Dannah,  2  Camp.  203 ;  Raynor 
V.  Lithorn,  2  C.  &  P.  120;  Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720; 
Bent  V.  Copp,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295.  Where  the 
suit  is  brought  by  the  auctioneer  himself,  for  the  purposes  of  that 
suit,  he  is  regarded  as  a  contracting  party,  and  a  signing  by  him  of 
the  name  of  the  defendant  is  insufficient.  Fairbrother  v.  Simons,  5 
B.  &  Aid.  333.  But  the  reason  of  this  disqualification  to  be  the 
agent  of  the  purchaser,  for  the  purpose  of  signing,  does  not  apply 
to  the  clerk  of  the  auctioneer.  When  the  bids  are  announced,  and 
the  property  struck  off,  the  clerk  is  the  agent  of  both  parties  to  re- 
cord the  sales  and  affix  the  signature  of  the  purchasers,  although  he 
is  employed  to  act  as  clerk  by  the  auctioneer.  No  reason  for  his 
disability  to  act  as  agent  for  the  purpose  of  making  the  signature 
of  the  purchaser,  as  between  the  latter  and  the  auctioneer,  can  be 
adduced,  which  will  not  operate  equally  to  exclude  the  auctioneer, 
where  the  litigation  is  directly  between  the  vendor  and  purchaser. 

The  question,  in  every  case,  is  one  of  fact,  whether  the  person 
by  whom  the  signature  has  been  made  was  an  agent  lawfully  au- 
thorized to  make  the  same.  Auctioneers  and  brokers,  by  virtue  of 
their  business,  by  the  usages  of  trade,  are  assumed  to  have  such 
authority;  and  where  the  auctioneer's  clerk,  or  a  volunteer,  acts 
openly  at  a  sale  in  entering  the  successful  bids  as  they  are  publicly 

4  8  The  statement  of  facts  and  part  of  the  opiuiou  are  omitted. 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  725 

announced,  his  authority  to  act  for  the  purchaser  in  the  premises 
is  established.  Consequently,  it  has  been  held  that,  in  a  suit  in 
the  name  of  an  auctioneer  against  a  purchaser  to  recover  the  price 
of  the  goods,  the  signing  of  the  purchaser's  name  by  the  clerk  of 
the  auctioneer,  upon  the  successful  bid  being  announced,  is  a  suffi- 
cient signing  within  the  statute.  Bird  v.  Boulter,  4  B.  &  Ad.  443 ; 
Browne  on  Frauds,  §  369;  Durrell  v.  Evans.  1  H.  &  C.  174-188; 
Gill  V.  Bicknell,  2  Cush.  (Mass.)  358.     *     *     * 


GRANT  et  al.  v.  FLETCHER  et  al. 
(Court  of  King's  Bench.   1826.     5  Barn.  &  C.  436.) 

Assumpsit  for  not  accepting  four  hundred  bags  of  Egyptian  cot- 
ton pursuant  to  contract.  Plea,  general  issue.  At  the  trial  before 
HuUock,  Baron,  at  the  last  Spring  assizes  for  the  county  of  Lancaster, 
the  following  appeared  to  be  the  facts  of  the  case.  The  plaintiffs 
having  received  advices,  that  six  hundred  bags  of  cotton  were  ship- 
ped for  them  at  Alexandria,  by  the  ship  Robert,  of  which  one  Wake, 
was  master,  directed  their  broker,  Withington,  to  sell  four  hundred 
bags  at  17%d.  per  lb.  Withington,  accordingly  entered  into  a  verbal 
contract  with  the  defendants,  and  made  the  following  entry  of  it  in 
his  memorandum  book:  "Sold  Peter  Fletcher  &  Son,  four  hundred 
Egyptians,  to  arrive  per  Robert,  Wake,  at  17%d.  per  lb."  And  he  de- 
livered to  the  defendants  the  following  note  of  the  contract:  "Rob- 
ert, Wake,  four  hundred  bags  of  Egyptian  cotton  at  17%d.,  shipped 
on  the  22d  of  February,  for  Wm.  Grant,  and  Brothers. — Henry 
Withington."  On  the  same  day  he  delivered  to  the  plaintiffs  the  fol- 
lowing note :  "four  hundred  certain  to  Messrs.  Fletcher  &  Son,  at 
17%d.,  ten  days  and  three  months  from  the  delivery,  you  allowing 
me  my  commission,  PI.  W."  It  was  objected,  that  as  the  notes  de- 
livered to  the  contracting  parties  were  different,  neither  was  bound, 
and  Gumming  v.  Roebuck,  Holt's  N.  .P.  C.  172,  was  cited.  The 
learned  Judge  was  of  opinion,  that  there  was  no  valid  contract  bind- 
ing both  parties,  and  the  plaintiff  was  nonsuited. 

Abbott,  C.  J.  The  broker  is  the  agent  of  both  parties,  and,  as  such, 
may  bind  them  by  signing  the  same  contract  on  behalf  of  buyer  and 
seller.  But  if  he  does  not  sign  the  same  contract  for  both  parties, 
neither  will  be  bound.  It  has  been  decided  accordingly,  that  where 
the  broker  delivers  a  different  note  of  the  contract  to  each  of  the 
contracting  parties,  there  is  no  valid  contract.  The  entry  in  the 
broker's  book  is,  properly  speaking,  the  original,  and  ought  to  be 
signed  by  him.  The  bought  and  sold  notes  delivered  to  the  parties 
ought  to  be  copies  of  it.  A  valid  contract  may  probably  be  made  by 
perfect  notes  signed  by  the  broker,  and  delivered  to  the  parties,  al- 
though the  book  be  not  signed :    but  if  the  notes  are  imperfect,  as  in 


726  STATUTE    OF   FRAUDS  (^Cll.  8 

the  present  case,  an  unsigned  entry  in  the  book  will  not  supply  the 
defect.  It  is  the  duty  of  brokers  to  make  the  contract  so  as  to  be 
binding  on  both  parties.  They  are  employed  to  prepare  contracts 
on  which  great  sums  of  money  depend,  and  I  must  say,  that  in 
many  cases  which  have  come  before  me  they  appear  to  conduct  their 
business  in  a  very  slovenly,  negligent  manner. 
Rule  refused. 


PARTON  V.  CROFTS. 
(Court  of  Common  Pleas,  1S64.     16  C.  B.  [N.  S.]  11,  33  Law  .7.  C.  P.  1S9.) 

ErlE,  C.  J.*^  I  am  of  opinion  that  the  decision  of  the  judge  of 
the  county  court  was  right.  This  was  an  action  by  a  seller  against 
a  buyer  for  not  accepting  goods  sold.  It  is  clear  from  the  statement 
of  facts  submitted  to  us,  that  the  brokers  were  employed  by  both 
buyer  and  seller, — by  the  seller  to  sell,  and  by  the  buyer  to  buy  for 
him ;  that  the  terms  were  arranged  by  them  as  the  common  agents 
for  both  parties,  and  were  communicated  to  them.  The  question 
which  we  have  to  decide,  is,  whether  the  requirements  of  the  Statute 
of  Frauds  have  been  complied  with  by  the  memorandum  in  writing 
which  was  produced.  I  make  a  distinction  between  the  contract  and 
the  memorandum  of  the  contract :  The  latter  may  be  made  long 
after  the  terms  have  been  agreed  to ;  and  the  making  of  the  one  is 
entirely  distinct  from  the  other.  That  which  the  plaintiff  here  pro- 
duced, was,  a  memorandum  signed  by  the  brokers,  who  were  agents 
for  both  parties,  that  the  iron  had  been  sold  on  a  given  day  upon 
certain  terms. 

Mr.  Quain  insists  that  the  delivery  of  the  sold-note  to  the  buyer 
is  not  according  to  the  usual  course ;  and  that  the  only  evidence  of 
the  contract  is  the  bought  and  sold-notes,  not  the  note  which  was 
produced.  I  am,  however,  of  opinion  that  the  objection  is  unfounded, 
and  that  the  memorandum  which  was  produced  is  a  complete  mem- 
orandum of  the  contract,  containing  the  quantity,  quality,  price,  and 
time  and  mode  of  payment.  It  is  said  that  the  sale-note  does  not 
contain  the  terms  of  a  purchase.  But  it  is  impossible  that  there  can 
be  a  sale  without  a  purchase :  the  relation  of  buyer  and  seller  can 
only  exist  where  there  are  two  parties  to  the  bargain.  It  is  impossi- 
ble to  say  that  the  document  in  question  is  not  a  memorandum  that 
the  defendant  contracted  to  buy  the  iron  therein  described.  If,  in- 
stead of  being  signed  by  the  agents,  it  had  been  signed  by  the  de- 
fendant himself,  could  it  have  been  contended  for  a  moment  that  it 
was  not  a  sufficient  memorandum  of  the  contract  to  satisfy  the  Stat- 
ute of  Frauds?  In  Sievewright  v.  Archibald,  17  Q.  B.  103,  the  bought 
and  sold-notes  differed,  and  so  the  evidence  of  the  contract  failed. 
Here,  the   sold-note  only  was  produced,  and  there  was  nothing  to 

4  9  The  statement  of  facts  is  omitted. 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  727 

impeach  it.  That  distinguishes  the  two  cases.  To  satisfy  the  17th 
section  of  the  statute  it  is  enough  to  produce  a  memorandum  of  the 
contract  signed  by  the  party  to  be  charged  thereby,  or  by  an  agent 
thereunto  duly  authorized.  I  think  the  county  court  judge  came  to  a 
right  conclusion. 

WiLivES,  J.  I  am  of  the  same  opinion.  When  it  is  found  that 
the  brokers  were  the  agents  of  both  parties,  it  is  the  same  as  if  the 
signature  had  been  in  the  handwriting  of  the  principal  himself.  As 
to  the  other  point  made  by  Mr.  Quain,  though  a  point  which  could  not 
have  arisen  but  for  the  Statute  of  Frauds,  it  is  not  one  to  be  decided 
upon  the  statute.  It  is  said  that  the  bought  and  sold-notes  together 
constitute  the  contract  between  the  parties,  and  that  both  should  be 
produced.  If  in  ordinary  practice  these  expressed  different  things, 
I  should  agree  with  Mr.  Quain  that  both  must  be  produced.  But  it 
is  well  known  that  in  practice  the  one  is  a  copy  of  the  other.  It  is 
the  duty  of  the  common  agent  of  both  buyer  and  seller  (where  one 
broker  only  is  employed)  to  send  each  a  copy :  and,  in  the  absence 
of  evidence  to  the  contrary,  it  is  not  too  much  to  assume  that  the 
agent  has  done  his  duty. 

For  these  reasons,  I  am  disposed  to  agree  with  what  was  done  by 
Lord  Denman  upon  the  first  trial  of  the  case  of  Hawes  v.  Forster, 
1  M.  &  Rob.  368,  where,  one  of  the  notes  only  having  been  put  in, 
he  assumed  that  to  be  a  true  representation  of  the  contract  between 
the  parties.  And,  when  I  read  the  judgment  of  Patteson,  J.,  in 
Sievewright  v.  Archibald,  and  recollect  the  accuracy  of  language  ordi- 
narily used  by  that  very  learned  judge,  I  cannot  doubt  that  in  his 
opinion  the  contract  would  have  been  well  proved  by  the  production 
of  one  of  the  notes,  in  the  absence  of  proof  that  the  other  contained 
different   terms.      The   judgment   must  be   affirmed,   and   with   costs. 

Judgment  affirmed. ^° 


JONES  BROTHERS  v.  JOYNER. 

(Queen's  Bench  Division,  1900.     82  Law  T.  [N.   S.]  768.) 

This  was  an  appeal  from  his  Honour  Judge  Sir  Richard  Haring- 
ton,  sitting  at  the  Worcester  County  Court. 

The  plaintiffs  were  hop  growers  and  the  defendant  was  a  pub- 
lican, and  the  action  was  brought  to  recover  the  price  of  two 
pockets  of  hops,  and  at  the  trial  an  alternative  claim  was  added 
for  damages  for  the  refusal  of  the  defendant  to  accept  the  hops. 

On  the  22d  April,  1899,  the  defendant  gave  the  plaintiffs  the  or- 
der and  signed  the  following  memorandum: 

"April  22.— Mr.  J.  P.  Joyner,  Worcester.— 2  Pos.  of  Hops  1898, 
at  71.  5s.  per  cwt.,  awaiting  order.     Cash  on  delivery. 

"J.  P.  Joyner." 

5  0A  concurring  opinion  was  delivered  by  Williams,  J. 


728  STATUTE    OF   FRAUDS  (Ch.  8 

The  above  memorandum  was  made  by  the  plaintiffs  in  a  paper 
memorandum  or  note  book  in  which  orders  were  generally  put,  and 
it  was  signed  by  the  defendant. 

This  paper  book  was  slipped  into  a  leather  cover,  upon  which 
the  name  "James  Jones"  was  stamped.  When  the  paper  memoran- 
dum book  was  full,  it  could  be  withdrawn  and  a  fresh  one  inserted 
in  the  same  leather  cover. 

It  was  contended  by  the  defendant  that  there  was  no  sufficient 
memorandum  to  satisfy  the  Sale  of  Goods  Act  1893,  s.  4,  as  the 
plaintiflfs'  name,  did  not  appear  in  the  memorandum  signed  by  the 
defendant. 

It  was  contended  by  the  plaintiffs  that  the  name  being  on  the 
cover  of  the  case  in  which  the  memorandum  book  was  at  the  time 
the  order  was  taken  was  sufficient  to  satisfy  the  statute,  and  the 
book  and  case  were  sufficiently  connected  to  make  the  name  on  the 
case  part  of  the  memorandum,  on  the  authority  of  Sari  v.  Bourdil- 
lon,  1  C.  B.  (N.  S.)  188,  2  Jur.  (N.  S.)  1208. 

The  learned  judge  distinguished  that  case  on  the  ground  that 
there  the  name  of  the  plaintiff  was  on  the  fly-leaf  of  the  book  it- 
self, and  he  gave  judgment  for  the  defendant,  holding  that  the  cover 
and  the  book  were  two  distinct  articles. 

The  plaintiffs  appealed. 

Darling,  J.  The  plaintiff's  in  this  case,  Jones  Brothers,  are  sellers 
of  hops,  and  this  book  belonged  to  one  of  the  partners.  He  sold 
certain  hops  to  the  defendant,  and  made  the  note  in  his  book  which 
was  signed  by  the  defendant.-  It  is  now  objected  that  there  was 
not  sufficient  memorandum  to  satisfy  the  Statute  of  Frauds,  re- 
enacted  by  section  4  of  the  Sale  of  Goods  Act  1893,  where  the 
names  of  the  buyer  and  seller  must  both  appear.  The  learned 
County  Court  judge  has  held  that  there  was  not  a  sufficient  mem- 
orandum to  satisfy  the  statute,  and  he  made  reference  in  his  judg- 
ment to  the  two  cases  of  Sari  v.  Bourdillon,  1  C.  B.  (N.  S.)  188,  2 
Jur.  (N.  S.)  1208,  and  Vandenberg  v.  Spooner,  14  L.  T.  Rep.  701, 
L.  Rep.  1  Ex.  316. 

That  latter  case  has  little  to  do  with  the  matter,  for  the  name 
Vandenberg  had  only  to  do  with  identifying  the  goods.  In  Sari  v. 
Bourdillon  the  note  made  had  been  signed  by  the  buyer,  and  the 
name  of  the  seller  was  on  the  fly-leaf  of  the  book  itself.  The  learn- 
ed judge  in  his  judgment  says:  'Tn  Sari  v.  Bourdillon  evidence  that 
the  entry  was  signed  by  the  defendant  in  plaintift''s  order  book  con- 
taining the  name  of  the  plaintiff  on  the  fly-leaf  was  held  sufficient. 
But  there  the  book  was  an  order  book,  and  appears  to  have  been 
an  entire  document  as  much  as  a  deed  engrossed  on  several  skins 
of  parchment  attached  together  would  be.  Here  the  cover  and 
the  book  were  two  distinct  articles,  and  the  name  was  evidently 
printed  on  the  case  as  an  indication  of  ownership  of  it  and  its  con- 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  729 

tents,  whatever  they  might  happen  to  be,  and  not  for  the  purpose 
of  indicating  concurrence  in  contracts."  He  seems  to  think  that 
if  this  had  all  been  an  order  book  it  might  have  been  sufficient; 
but  although  this  book  was  a  pocket  book,  it  was  one  in  which 
there  were  orders,  and  in  which  orders  were  written. 

In  Champion  v.  Plummer,  1  Bos.  &  P.  252,  it  was  held  that  a 
note  or  memorandum  in  writing,  signed  by  the  seller  only  and 
without  anything  on  the  memorandum  to  show  who  the  buyer  was, 
was  not  a  sufficient  memorandum  to  satisfy  the  statute.  In  the  course 
of  the  report  it  says  that  it  was  proved  that  a  note  was  made  in  a 
common  memorandum  book  and  signed  by  the  defendant.  No  point 
is  made  in  the  judgment  that  this  was  merely  a  common  memoran- 
dum book,  and  I  do  not  mention  this  point  for  the  first  time,  for  in 
Allen  V.  Bennet,  3  Taunt.  169,  Sir  James  Mansfield,  C.  J.,  says : 
"To  be  sure  this  case  at  first  sight  comes  near  to  the  case  of  Cham- 
pion V.  Plummer,  and  the  objection  there  certainly  was  that  the 
memorandum  was  not  signed  by  the  purchaser ;  that  was  a  note 
made  in  what  the  report  calls  a  common  memorandum  book;  this 
book  certainly  was  not  like  what  I  at  first  apprehended  it  to  be, 
until  it  was  produced;  for  I  at  first  thought  this  had  been  an  order 
book.  *  *  * "  However,  in  Champion  v.  Plummer  the  court 
did  not  take  the  point  that  it  was  only  a  common  memorandum 
book.  But  the  case  which  is  most  like  the  present  is  undoubtedly 
Sari  v.  Bourdillon,  supra,  where  the  book  is  described  as  an  order 
book. 

The  other  point  that  the  learned  County  Court  judge  took  was 
that  the  book  and  cover  were  two  distinct  articles.  But  when  the 
memorandum  was  made  they  were  only  one.  Take  the  case  of  a 
letter  and  envelope.  First  of  all  the  letter  is  written,  it  is  placed 
in  an  envelope,  and  the  name  of  the  other  person  appears  on  the 
envelope.  In  such  a  case  there  may  be  two  distinct  articles,  which 
are  used  as  one.  Further,  I  think  it  makes  no  difference  that  the 
words  "order  book"  do  not  appear.  In  fact,  the  orders  were  placed 
in  a  book  which  was  used  for  that  purpose.  The  appeal  must  be 
allowed. 

BucKNiivL,  J.  From  a  common-sense  point  of  view  one  cannot  say 
that  there  were  two  distinct  articles.  In  fact  there  was  only  one 
article.  I  come  to  the  same  conclusion  as  my  Brother,  that  this 
appeal  must  be  allowed. 

Appeal  allowed. 


730  STATUTE    OF   FRAUDS  (Ch.  8 

BREWER  V.  HORST  &  LACHMUND  CO. 

(Supreme  Court  of  Califoiuia,  1900.     127  Cal.  643,  60  Pac.  418, 
50  L.  R.  A.  240.) 

Gray,  C.  This  is  an  action  for  a  breach  of  contract  of  sale  and 
purchase  brought  by  vendor  against  the  vendee.  The  complaint 
sets  out  an  agreement  whereby  plaintiff  agreed  to  sell,  and  defend- 
ant agreed  to  buy  of  plaintiff,  57,110  pounds  of  hops,  at  11^  cents 
per  pound;  that  plaintiff'  tendered  the  hops,  and  defendant  refused 
to  take  or  pay  for  them;  and  that  thereupon  plaintiff  sold  said  hops 
to  a  third  person  for  the  best  obtainable  price,  which  was  $830.93 
less  than  defendant  had  agreed  to  pay  therefor.  Plaintiff  obtained 
judgment  for  said  $830.93,  and  defendant  appeals.  The  case  comes 
here  on  the  judgment  roll. 

The  answer  sets  up  the  statute  of  frauds,  alleging  that  the  agree- 
ment sued  on  "was  an  agreement  for  the  sale  of  goods  and  chattels 
at  a  price  exceeding  two  hundred  dollars ;  and  defendant  did  not 
accept  or  receive  any  part  of  said  goods  and  chattels,  and  did  not 
pay  any  part  of  the  purchase  money  therefor;  and  said  sale  was 
not  made  at  auction ;  and  said  agreement  was  not,  nor  was  any 
sufficient,  proper,  or  adequate  memorandum  or  note  thereof,  in 
writing,  subscribed  by  defendant  or  by  any  agent  of  defendant." 

The  court  found  as  to  the  contract: 

That  Fred  E.  Alter  was  the  general  agent  in  the  state  of  Cal- 
ifornia, and  was  empowered  to  make  contracts  therein  for  defend- 
ant. That  C.  A.  Wagner  was-  defendant's  agent  in  the  county  of 
Sacramento,  empowered  to  solicit  samples  in  that  and  adjoining 
counties  from  hop  growers,  and  transmit  the  same  to  defendant's 
said  general  agent  at  Santa  Rosa,  California,  "and  to  contract  with 
such  growers  for  the  purchase  from  them  in  behalf  <Df  defendant 
corporation  of  such  of  said  hops  as  might  by  the  latter  be  desired, 
subject  to  the  approval  of  the  defendant  corporation,  through  its 
general  agent,  said  Alter."  That  plaintiff  was  a  hop  grower  hav- 
ing a  farm  near  Ben  Aii,  Sacramento  county,  and  in  September, 
1897,  said  Wagner,  as  agent  for  defendant,  obtained  samples  of  a 
certain  lot  of  hops,  consisting  of  296  bales,  weighing  57,110  pounds, 
belonging  to  said  plaintiff',  and  transmitted  said  samples  to  Alter 
at  Santa  Rosa,  at  the  same  time  informing  said  Alter  of  the  fact 
that  said  samples  were  from  the  lot  aforesaid,  comprising  296  bales 
of  the  last  pickings  of  hops  grown  by  plaintiff'  during  the  year  1897 
upon  his  said  farm.  That  at  the  same  time  said  Wagner  designated 
said  samples  by  the  trade  number  or  symbol  "13."  That  it  was  and 
is  the  custom  which  prevails  generally  among  dealers  in  hops  to 
mark  and  designate  by  number  tlie  different  samples  furnished 
them  by  growers,  and  such  custom  was  followed  by  defendant  in 
the  transaction  herein  set  forth.     That  hops  are  sold,  according 


Sec.  6)  THE    NOTE   OR    MEMORAT.'DIL'VI  73l 

to  the  custom  of  trade  and  usage  in  California,  by  the  pound.  That 
on  October  11,  1897,  plaintiff  and  defendant's  agent,  Wagner,  en- 
tered into  an  oral  contract,  subject  to  the  approval  of  Alter  where- 
by plaintiff  sold  and  defendant  bought  the  aforesaid  lot  of  hops, 
provided  the  same  v^ere  in  quality  equal  to  the  samples  marked 
"13,"  and  it  was  agreed  that  defendant  should  inspect  the  hops  on 
or  before  October  16th.  On  the  same  day,  October  11th,  Wagner 
telegraphed  to  Santa  Rosa  as  follows : 

"October  11,  189? 
"Horst  &  Lachmund  Co.,  Santa  Rosa,  Cal. :    Bought  thirteen,  at 
eleven  five-eighths  net  you;    confirm  purchase  by  wire  to  Brewer, 
nineteen  sixteen  M  street.    Inspection  on  or  before  Saturday.     Do 
you  want  fifteen  at  eleven  quarter?  C.  A.  Wagner." 

Alter  received  this  message  the  same  day,  and  thereupon  sent 
to  plaintiff,  and  plaintiff  received,  the  following  telegram : 

"Santa  Rosa,  Cala.,  Oct.   11,  '97. 
"Geo.  Brewer  1916  M  street,  Sacramento,  Cali. :  We  confirm  pur- 
chase Wagner  eleven  five-eight  cents,  like  sample. 

"[Signed]     Horst  and  Lachmund  Co." 

That  these  telegrams  are  the  only  written  evidence  of  the  con- 
tract between  the  parties.  That  the  said  Alter  knew  that  the  num- 
ber or  symbol  designated  "13,"  used  in  the  telegram  first  set  out 
above,  referred  to  and  meant  the  hops  belonging  to  plaintiff,  as 
aforesaid  comprising  said  296  bales  or  thepeabouts  and  were  the 
past  pickings  of  plaintiff's  hops  grown  upon  his  said  farm  in  1897, 
and  also  knew  the  situation  of  the  hops  and  the  other  facts  herein- 
before mentioned.  And  that  defendant  subsequently  inspected  the 
hops,  and,  without  any  lawful  or  just  cause,  rejected  them  and 
refused  to  receive  them  when  tendered  by  plaintiff. 

The  only  question  presented  for  decision  is,  did  these  telegrams 
constitute  a  sufficient  note  or  memorandum  of  the  contract  to  sat- 
isfy the  requirements  of  the  statute  of  frauds?  The  trial  court,  by 
its  judgment,  answered  this  question  in  the  affirmative.  And,  in 
view  of  all  the  facts  found,  we  think  the  court  reached  the  proper 
conclusion.  If  there  were  nothing  to  look  to  but  the  telegrams,  the 
court  might  find  it  difficult,  if  not  impossible,  to  determine  the 
nature  of  the  contract,  or  that  any  contract  was  entered  into  be- 
tween the  parties.  But  the  court  is  permitted  to  interpret  the  mem- 
orandum (consisting  of  the  two  telegrams)  by  the  light  of  all  the 
circumstances  under  which  it  was  made ;  and  if,  when  the  court  is 
put  into  possession  of  all  the  knowledge  which  the  parties  to  the 
transaction  had  at  the  time,  it  can  be  plainly  seen  from  the  mem- 
orandum who  the  parties  to  the  contract  were,  what  the  subject 
of  the  contract  was  and  what  were  its  terms,  then  the  court  should 
not  hesitate  to  hold  the  memorandum  sufficient. 


732  STATUTE    OF   FRAUDS  "  (Ch.  8 

Oral  evidence  may  be  received  to  show  in  what  sense  figures  or 
abbreviations  were  used,  and  their  meaning  may  be  explained  as 
it  was  understood  between  the  parties.  Mann  v.  Higgins,  83  Cal. 
66,  23  Pac.  206;  Berry  v.  Kowalsky,  95  Cal.  134,  30  Pac.  202,  29 
Am.  St.  Rep.  101;  Callahan  v.  Stanley,  17  Cal.  476.  Also:  "Parol 
evidence  is  always  admissible  to  explain  the  surrounding  circum- 
stances, and  situation  and  relations  of  the  parties,  at  and  imme- 
diately before  the  execution  of  the  contract,  in  order  to  connect  the 
description  with  the  only  thing  intended,  and  thereby  to  identify 
the  subject-matter,  and  to  explain  all  terms  and  phrases  used  in  a 
local  or  special  sense."  Preble  v.  Abrahams,  88  Cal.  245,  26  Pac. 
99,  22  Am.  St.  Rep.  301 ;  Towle  v.  Coal  Co.,  99  Cal.  397,  Zl  Pac. 
1126. 

Interpreting  the  telegrams  by  the  foregoing  rules,  it  is  not  diffi- 
cult to  see  that  the  parties  to  the  contract  are  George  Brewer,  of 
1916  ]\I  street,  Sacramento,  California,  vendor,  and  the  Horst- 
Lachmund  Compan}^  of  Santa  Rosa,  California,  vendee ;  that  the 
contract  was  one  of  purchase  and  sale,  and  the  subject  of  it  was 
the  property  represented  in  the  first  telegram  by  "13,"  and  well 
known  by  the  parties  to  consist  of  296  bales  of  hops  and  to  be  the 
last  pickings  of  hops  grown  b}^  plaintiff  upon  his  farm  in  Sacra- 
mento county  during  the  year  1897;  and  that  the  price  to  be  paid 
for  said  hops  was  ll?,s  cents  per  pound.  The  two  telegrams  bear 
the  same  date.  On  their  face,  the  last  one  was  sent  to  plaintiff 
in  response  to  the  first;  and  it  is  clear  that  they  should  be  read 
together,  to  determine  whether  they  constitute  the  note  or  memo- 
randum required  by  the  statute  of  frauds.  Elbert  v.  Gas  Co.,  97 
Cal.  244,  32  Pac.  9;  Breckinridge  v.  Crocker,  78  Cal.  529,  21  Pac. 
179.  We  are  satisfied  that  the  telegrams,  thus  read  by  the  light 
of  the  circumstances  surrounding  the  parties,  are  sufficient  to  take 
the  contract  out  of  the  statute  of  frauds.  Any  other  conclusion 
than  the  one  here  reached  would  certainly  impair  the  usefulness 
of  modern  appliances  to  modern  business,  tend  to  hamper  trade, 
and  increase  the  expense  thereof. 

We  advise  that  the  judgment  be  affirmed. 

We  concur:    Hayne;s,  C.  ;    Chipman,  C. 

For  the  reasons  given  in  the  foregoing  opinion,  the  judgment 
is  affirmed. 

BECKWITH  V.  TALBOT. 

(Supreme  Court  of  United  States,  1877.    95  U.  S.  289.  24  L.  Ed.  '  96.) 

Mr.  Justice  Bradley.^^  This  was  an  action  brought  by  Talbot 
against  George  C.  Beckwith  in  the  District  Court  of  Colora  Ko  for 
the  County  of  Fremont,  to  recover  damages  for  the  breach  of  a  con- 
tract alleged  to  have  been  made  on  the  7th  of  October,  18/'0,  be- 

61  Part  of  tlie  opinion  is  omitted. 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  733 

tween  the  plaintiff  and  two  others  on  the  one  part,  and  the  defend- 
ant on  the  other,  whereby  they  were  to  herd  and  care  tor  a  large 
herd  of  cattle  for  the  defendant,  from  that  time  until  the  fifth  day 
of  December,  1872,  for  which  he  was  to  give  them  one-half  of 
what  the  cattle  and  their  increase  should  then  bring-  over,  $36,681.- 
60;  that  is,  to  each  one-third  of  such  half.  The  declaration  alleged 
that  the  plaintiff  and  the  two  persons  who  entered  into  the  con- 
tract together  with  him  (who  were  the  sons  of  the  defendant)  per- 
formed their  part  of  it,  but  that  the  defendant  refused  to  sell  the 
cattle,  or  to  pay  the  plaintiff  his  share  of  their  value  above  the  said 
sum. 

On  the  trial,  two  defences  were  relied  on  which  are  made  the 
subject  of  assignments  of  error  here:  First,  that  the  alleged  con- 
tract w^as  void  by  the  Statute  of  Frauds,  because,  though  not  to  be 
performed  within  a  year,  it  was  not  in  writing  signed  by  the  de- 
fendant; secondly,  that  it  was  a  joint  contract  on  which  the  plain- 
tiff could  not  maintain  a  separate  action. 

The  territorial  Statute  of  Frauds  declares  that  "every  agreement 
which  b}-  its  terms  is  not  to  be  performed  within  a  year,  unless 
some  note  or  memorandum  thereof  be  in  writing  and  subscribed 
by  the  party  chargeable  therewith,  shall  be  void."  The  verbal 
dift'erence  between  this  statute  and  that  of  Charles  II.  is  not  mate- 
rial in  this  case. 

It  appeared  on  the  trial  that  the  agreement  made  by  the  parties 
was  committed  to  writing  at  the  defendant's  instance,  and  was  in 
the  following  words,  to  wit : 

"Wet  Mountain  Valley,  Oct.  7,  1870. 
"This  is  to  certify  that  the  undersigned  have  taken  two  thousand 
two  hundred  and  five  head  of  cattle,  valued  at  $36,681.60  on  shares 
from  George  C.  Beckwith;  time  to  expire  on  the  fifth  day  of  De- 
cember, 1872;  then  George  C.  Beckwith  to  sell  the  cattle  and  retain 
the  amount  the  cattle  are  valued  at  above.  Of  the  amount  the  cat- 
tle sell  at  over  and  above  the  said  valuation,  George  C.  Beckwith 
to  retain  one  half,  and  the  other  half  to  be  equally  divided  between 
C.  W.  Talbot,  and  Elton  T,  Beckwith,  and  Edwin  F.  Beckwith. 

"[Signed]     C.  W.  Talbot. 

"Elton  T.  Beckwith. 
"Edwin  F.   Beckwith." 

This  agreement  was  signed  by  the  plaintiff'  and  the  two  young 
Beckwiths,  but  was  not  signed  by  the  defendant.  It  was  delivered 
to  him,  however,  and  was  kept  by  him  until  he  produced  and  proved 
it  on  the  trial.  It  was  conceded  by  both  parties  that  this  was  the 
agreement  under  which  the  services  of  the  plaintiff  were  performed. 

Two  letters  written  by  the  defendant  to  the  plaintiff  on  the  sub- 
ject-matter of  the  contract,  and  whilst  he  had  the  said  agreement 
in  his  possession,  and  whilst  it  was  being  executed  by  the  plaintiff'. 


734  STATUTE    OF   FRAUDS  (Ch.  8 

namely,  one  on  the  21st  of  vSeptember,  1872,  and  the  other  on  the 
10th  of  November,  1872,  were  also  produced  in  evidence;  from 
which  the  following  are  extracts  : 

"Denver,  Sept.  21,  1872. 

"Mr.  Talbot — Sir:  On  my  arrival  from  the  mountains,  I  received 
your  letter.  As  I  have  wrote  you  before,  every  day  I  see  parties 
here  that  is  offering  their  cattle  very  low.  *  *  *  j  have  used 
every  exertion  for  the  last  three  months  to  sell.     *     *     * 

"You  suggest  giving  you  a  part  of  the  cattle.  That  is  entirely 
outside  of  tht  agreement.  Also,  where  would  be  the  interest  on 
the  amount  put  in  the  cattle  coming  from?  And  also  Elton  and 
Edwin  would  be  glad  to  do  the  same;  but  at  that  rate  I  would  not 
get  my  money  back  I  put  into  the  cattle. 

"The  cattle  must  be  sold  and  settled  up  according  to  the  agree- 
ment. I  will  do  every  thing  I  can  to  sell  at  the  best  advantage, 
and  you  shall  have  every  chance  to  get  a  purchaser  for  the  cattle  so 
as  to  make  the  most  out  of  them.     *     *     * 

"You  shall  have  no  chance  to  complain  in  my  keeping  up  to  the 
agreement,  as  I  shall  strictly,  although  I  have  heard  you  have  made 
complaints  to  parties,  which  I  think  is  very  unfair,  and  the  parties 
you  told  so  said  so  too.     *     *     * 

"Yours  respectfully,  George  C.  Beckwith." 

"Denver,  Nov.  10,  1872. 

"Mr.  Talbot — Sir :  At  first  I  thought  it  useless  to  answer  your 
letter,  as  I  am  bound  by  the  agreement  to  sell  the  cattle  in  a  very 
short  time.  *  *  *  J  notified  you  to  get  a  purchaser  for  the  cattle 
months  ago ;  and  what  have  I  received  from  you  in  return  and  for  my 
pay?  I  must  say  I  have  never  been  treated  so  meanly  by  a  man  in  my 
life.  My  rights  was  to  sell  the  cattle.  Does  the  agreement  say 
that  I  was  to  say  any  thing  to  you  or  any  one  else  ? 

"But  what  next?  You  quarrelled  with  me  because  I  would  not 
break  the  agreement  and  give  you  the  cattle  to  sell  at  figures  less 
than  I  had  kept  them  in  Denver  for  sale.  Now,  I  have  been  offered 
$31,000  for  the  cattle.  I  have  written  to  Edwin,  and  he  will  state 
to  you  what  I  wrote  him  to  say  to  you. 

"Yours,  in  haste,  George  C.  Beckwith." 

We  agree  with  the  Supreme  Court  of  Colorado  that,  in  the  face 
of  this  evidence,  produced  by  the  defendant  himself,  he  cannot  deny 
the  validity  of  the  agreement.  His  letters  are  a  clear  recognition 
of  it.  In  them  he  refers  to  "the  agreement"  again  and  again.  He 
declares  his  intention  to  adhere  to  it,  and  to  hold  the  plaintiff  to 
it.  What  agreement  could  he  possibly  refer  to  but  the  only  one 
which,  so  far  as  appears,  was  ever  made :  the  one  which  he  took 
into  his  possession,  and  then  had  in  his  possession;  the  one  under 
which  it  was  conceded  the  parties  were  then  acting?  The  defend- 
ant, being  examined  as  a  witness  on  his  own  behalf,  and  testifying 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  735 

with  regard  to  the  contract  between  the  parties,  said,  "The  matter 
was  all  talked  over,  and,  I  thought,  understood.  I  said  to  my  son 
Elton,  'You  understand  the  matter.  Will  you  take  a  pen  and  paper 
and  write  the  contract?'  He  wrote  it.  Talbot  read  it  and  signed 
it,  and  then  my  sons  signed  it."  On  cross-examination,  he  said,  "The 
contract  was  delivered  to  me  after  it  was  signed,  and  has  remained  in 
my  possession  ever  since  until  this  trial." 

It  is  undoubtedly  a  general  rule  that  collateral  papers,  adduced 
to  supply  the  defect  of  signature  of  a  written  agreement  under  the 
Statute  of  Frauds,  should  on  their  face  sufnciently  demonstrate 
their  reference  to  such  agreement  without  the  aid  of  parol  proof. 
But  the  rule  is  not  absolute.  Johnson  v.  Dodgson,  2  Mee.  &  W. 
653 ;  Salmon  Falls  Co.  v.  Goddard,  14  How.  446,  14  L.  Ed.  493. 
There  may  be  cases  in  which  it  would  be  a  violation  of  reason  and 
common  sense  to  ignore  a  reference  which  derives  its  significance 
from  such  proof.  If  there  is  ground  for  any  doubt  in  the  matter, 
the  general  rule  should  be  enforced.  But  where  there  is  no  ground 
for  doubt,  its  enforcement  would  aid,  instead  of  discouraging,  fraud. 
vSuppose  an  agreement  be  made  out  and  signed  by  one  of  the  par- 
ties, the  other  being  absent.  On  the  following  day,  the  latter  writes 
to  the  party  who  signed  it  as  follows :  "My  son  informs  me  that 
you  yesterday  executed  our  proposed  agreement,  as  prepared  by 
J.  S.  I  write  this  to  let  you  know  that  I  recognize  and  adopt  it." 
Would  not  this  be  a  sufficient  recognition,  especially  if  the  parties 
should  act  under  the  agreement?  And  yet  parol  proof  would  be 
required  to  show  what  agreement  was  meant.  The  present  case 
is  as  strong  as  that  would  be.  In  our  judgment,  the  defendant, 
unless  he  could  show  the  existence  of  some  other  agreement,  was 
estopped  from  denying  that  the  agreement  referred  to  by  him  in  his 
letters  was  that  which  he  induced  the  plaintiff  to  sign,  and  which 
he  put  in  his  pocket  and  kept,  and  sought  to  enforce  against  the 
plaintiff  for  two  whole  years. 

On  this  point,  therefore,  we  are  clearly  of  opinion  that  no  error 
was  committed  by  the  court  below.     *     *     * 

Judgment  affirmed. 


BROWN  V.  WHIPPLE. 

(Supreme  Court  of  New  Hampshire,  1877.     58  N.  H.  229.) 

Assumpsit,  for  not  accepting  lumber.  Verdict  for  the  plaintiff: 
motion  of  the  defendant  for  a  new  trial.  As  evidence  of  the  memo- 
randum required  by  the  statute  of  frauds,  the  plaintiff  introduced, 
subject  to  exception,  a  letter  written  and  signed  by  the  defendant, 
a  memorandum  written  by  the  defendant,  and  a  letter  written  and. 
signed  by  the  plaintiff. 


736  STATUTE    OF   FRAUDS  (Ch.  8 

The  Defendant's  Letter. 

"Lancaster,  Dec.  21,  1867. 
"J.  B.  Brown,  Esq. — Dear  Sir:  Can  j-ou  get  20  M.  feet  maple, 
the  best  quality,  the  coming  winter,  saw  it  in  the  spring  (or  win- 
ter), and  deliver  it  at  the  depot  at  your  place  in  July  next?  If 
so,  for  how  much  per  ^L?  Please  call  at  my  place  when  you  are 
at  Lancaster,  and  we  will  talk  it  over,  or  write  me  all  the  particu- 
lars. 

"Respectfully  yours,  J.  M.  Whipple." 

The  Defendant's  Memorandum. 
"Rock  maple,  clear,  for  J.  M.  Whipple.  15,000  feet;    10,000  feet 
2  inches  thick;    5,000   feet   11-4  inches  thick.     To  be   delivered  at 
the  railroad  track.     Price,  $20  per  M." 

The  Plaintiff's  Letter. 

"May,  1868. 
"John  M.  Whipple:     The  maple  lumber  which  I  agreed  to  get  out 
for  you  is  ready  for  delivery.    Would  like  to  have  you  call  up  and 
take  the  account  of  it,  as  I  wish  to  draw  it  over  to  the  railroad 
track.  James  B.  Brown." 

Doe,  C.  J.  When  one  document  refers  to  another,  the  latter  is, 
for  the  purpose  of  such  reference,  incorporated  with  the  former. 
1  Starkie,  Ev.  359  (page  580  of  4th  Eng.  Ed.)  ;  Simons  v.  Steele, 
36  N.  H.  73,  83;  Church  v.  Brov.m,  21  N.  Y.  315,  330-334.  A  list 
of  taxes  may,  by  annexation  and  reference,  be  made  a  part  of  a  tax- 
collector's  warrant.  Bailey  v.  Ackerman,  54  N.  H.  527.  In  Tall- 
man  V.  Franklin,  14  N.  Y.  584,  it  was  held  that  a  document  was 
made  a  part  of  a  memorandum  by  being  fastened  to  it  by  a  pin  be- 
fore the  memorandum  was  signed,  a  blank  column  of  the  memoran- 
dtmi  being  headed  "Terms  of  Sale,"  and  the  annexed  document  hav- 
ing the  same  heading,  and  containing  terms  of  sale. 

In  this  case,  the  letter  written  by  the  plaintiff  to  the  defendant  is 
no  part  of  the  memorandum  required  by  the  statute  of  frauds,  be- 
cause it  is  neither  signed  by  the  defendant,  nor  made,  by  annexation 
or  reference,  a  part  of  a  writing  signed  by  him.  2  Kent,  Com.  511 ; 
Benjamin  on  Sales,  §§  222-237;  Blackburn  on  Sales,  §§  46-54;  au- 
thorities cited  in  ^Morton  v.  Dean,  13  Mete.  (Mass.)  385,  and  in 
Browne  on  Statute  of  Frauds,  §§  346-348,  371-376;  Fitzmaurice  v. 
Bayley,  9  H.  L.  Cas.  78;    Skelton  v.  Cole,  1  De  Gex  &  J.  587. 

If  it  was  held,  in  S.  F.  M.  Co.  v.  Goddard,  14  How.  446,  14  L.  Ed 
493,  and  in  Lerned  v.  Wannemacher,  9  Allen  (Mass.)  412,  that,  by 
a  writing  signed  by  the  plaintiff,  not  signed  by  the  defendant  (the 
party  to  be  charged),  and  not  made  a  part  of  a  memorandum  signed 
by  the  defendant,  the  plaintiff  may  prove  a  fact  which  the  statute 
requires  to  be  proved  by  a  memorandum  signed  by  the  defendant, 
those  cases  are  in  conflict  with  a  mass  of  authority  too  great  to  be 


Sec.  6)  THE    NOTE  OR  MElIORAX'DlIlf  737 

overthrown.  The  soundness  of  the  contrary  doctnne  was,  in  the 
former  case,  demonstrated  to  the  dissenting  opinion  of  two  jodges, 
and  was.  in  the  latter  case,  snbstantiallv  admitted. 

In  Beckwith  t.  Talbot,  95  U.  S.  289.  292,  24  L.  Ed.  496,  it  was  a 
question  of  legal  construction  whether  the  written  agreement, 
signed  b}*  the  plaintiff,  was  sufficient!}-  identified  and  referred  to 
by  the  defendant,  in  his  letters,  to  make  it  a  part  of  a  memorandnm 
signed  by  him.  It  was  held  that  the  general  rale  is,  that  oc^lateral 
papers,  adduced  to  supph-  the  defect  of  signature  of  a  written  agree- 
ment, should  on  their  face  sufficiently  demc^nstrate  their  reference 
to  such  agreement  without  the  aid  of  parol  prc>of.  In  what  was 
said  of  an  exception  in  cases  where  parol  evidence  leaves  no  ground 
for  doubt,  we  do  not  concur.  Unless  the  essential  terms  of  the 
sale  can  be  ascertained  from  the  writing  itself,  or  by  reference  in  it 
to  something  else,  the  writing  is  not  a  compliance  with  the  statute ; 
and  if  the  agreement  be  thus  defective,  it  cannot  be  sopplied  by 
parol  proof,  for  that  would  at  once  introduce  all  the  mischiefs 
which  the  statute  was  intended  to  prevent.  Williams  v.  Morris,  95 
U.  S.  444,  456,  24  L.  Ed.  360.  A  defective  reference  can  no  more 
be  cured  by  parol  than  any  other  defective  part  of  the  memorandnm. 

The  writing,  called  in  this  case  the  defendant's  memorandnm, 
is  insufficient,  because,  if  it  is  signed  by  the  defendant,  and  if  it 
shows  that  he  bought  lumber  of  some  one,  it  does  not  show  of 
whom  he  bought  it.  The  defendant's  letter  of  inquiry  is  insufficient, 
because  it  does  not  show  that  he  bought  or  agreed  to  buy  anjthii^ 
of  anybody.  If  the  necessan.-  memorandum  were  described  in  the 
statute  (Gen.  St.  c.  201.  §  14j  as  a  scintilla  of  proof  of  the  essentials 
of  the  bargain,  and  if  the  question  were,  whether,  in  fact,  the  plain- 
tiff is  the  person  vdih  whom  the  defendant  contracted,  one  question 
of  law  would  be,  whether  the  defendant's  memorandnm  and  letter 
(with  or  -n-ithout  other  evidence)  are  competent  for  the  considera- 
tion of  the  jur}-.  But  the  question  is,  not  whether  there  is  an  in- 
finitesimal or  other  amount  of  circumstantial  evidence  from  which 
a  jury  may  find  the  fact  not  stated  in  the  writings,  but  whether  the 
court  does  find,  upon  a  fair  l^al  constructkm  of  the  writii^;s,  that 
the  fact  is  stated  in  them. 

Taken  together,  with  all  the  meania^  that  is  expressed,  and  all  that 
can  be  implied,  by  the  most  strained  cnnstmctkMi,  ia  favor  <rf  the 
plaintiff,  the  defendant's  memorandum  and  letter  state,  that  at  some 
time  the  defendant  agreed  to  bay  of  somdxKiy  15,000  feet  of  dear 
rock  maple  boards  of  certain  dimensirais,  to  be  dehvexed  at  the  rail- 
road track,  at  S20  a  thousand;  and  that,  on  the  21st  day  of  Decem- 
ber, 1S67.  the  defendant  inquired  of  tfie  plaintiff,  by  letter,  ^diether 
he  could  get,  for  the  defendant  20,000  feet  of  the  b^  majp^e  lumber, 
the  coming  winter,  saw  it  in  the  winter  or  spring,  and  deliver  it  at  the 
WooDW.  Sai.es — i7 


738  STATUTE    OF   FRAUDS  (Ch.  8 

depot  at  the  plaintiff's  place  the  next  July, — and  at  what  price  the  plain- 
tiff would  do  this.  We  do  not  think  the  legal  import  of  this  state- 
ment is,  that  the  plaintiff  is  the  person  with  whom  the  defendant  con- 
tracted. 

A  memorandum  (consisting  of  one  or  more  writings)  may  be  read, 
like  other  documents,  in  the  light  of  the  circumstances  in  which  it 
was  written,  for  the  explanation  of  its  latent  ambiguities,  and  the  ap- 
plication of  its  terms  to  the  persons  and  things  sufficiently  described 
in  it.  But  this  rule  does  not  admit  parol  evidence  to  supply  an  es- 
sential part  of  the  contract,  the  omission  of  which  is  patent  on  the 
face  of  the  memorandum.  And  the  inequitable  operation  of  the  stat- 
ute is  not  to  be  avoided  by  a  narrow  construction  of  the  law,  or  a 
liberal  construction  of  the  memorandum.  Arguments  from  inconven- 
ience and  injustice  sometimes  tend  to  show  the  law-makers'  intention. 
But  there  is  reason  to  fear,  that,  in  this  country  as  well  as  in  Eng- 
land, the  favor  with  which  some  statutes,  and  the  dislike  with  which 
others,  have  been  regarded  by  courts,  have  enlarged  the  distinction 
between  strict  and  loose  construction,  without  reference  to  the  legis- 
lative intent,  and  introduced  a  variable  standard  that  exposes  the 
province  of  the  legislature  to  judicial  invasion. 

Verdict  set  aside. 

Foster,  J.,  did  not  sit. 


LERNED  et  al.  v.  WANNEMACHER  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  1S64.    9  Allen,  412.) 

Contract  brought  to  recover  damages  for  the  failure  to  deliver  a 
quantity  of  coal,  sold  by  the  defendants  to  the  plaintiffs.  One  ground 
of  defence  was,  that  the  contract  was  not  binding  because  not  exe- 
cuted in  conformity  to  the  statute  of  frauds. 

At  the  trial  in  the  superior  court,  before  Morton,  J.,  the  plaintiffs 
introduced  evidence  tending  to  show  the  following  facts':  Albert  Bet- 
teley  was  authorized  to  sign  contracts  for  the  sale  of  coal,  in  behalf 
of  the  defendants,  who  were  commission  merchants  in  Philadelphia, 
under  the  firm  of  Wannemacher  &  Maxfield.  On  the  31st  of  March, 
1863,  the  plaintiffs  made  a  parol  contract  for  the  purchase  of  one 
thousand  tons  of  coal  of  Betteley,  as  agent  of  the  defendants,  accord- 
ing to  the  terms  of  the  written  memorandum  hereinafter  set  out.  The 
plaintiffs  then  signed  and  delivered  to  Betteley,  as  agent  of  the  de- 
fendants, a  memorandum  of  the  contract,  partly  written  and  partly 
printed,  as  follows,  the  written  parts  being  here  put  in  italics : 

"Coal,  when  delivered  on  board  of  vessels,  boats  or  barges,  to  be  in 
all  respects  at  the  purchaser's  risk;  bills  of  lading,  or  other  regular 
testimony  of  shipment,  to  be  proof  of  such  delivery,  both  as  to  time 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  739 

and  quantity.  Each  cargo  of  coal  to  be  settled  for  from  time  to  time 
as  delivered,  in  the  mode  specified  in  the  contract.  Captains  of  ves- 
sels sent  by  purchasers  for  their  coal,  to  bring  written  orders,  and 
take  each  his  regular  turn  in  loading.  All  possible  despatch  will  be 
given  in  loading,  but  no  claims  will  be  allowed  for  demurrage,  nor  for 
the  consequences  of  unavoidable  delay.  No  responsibility  assumed  as 
regards  procuring  vessels,  boats  or  barges;  but  every  exertion  will 
be  used  to  engage  them.  Every  efifort  will  be  made  for  the  fulfillment 
of  this  contract;  but  if  prevented  or  obstructed  by  breaches,  or  other 
unavoidable  occurrences,  on  the  canals  or  railroads,  or  at  the  mines, 
or  by  combinations,  strikes  or  turn-outs  among  miners,  boatmen  or 
laborers,  no  claim  for  damages  will  be  allowed.  Wannemacher  & 
Maxfield,  commission  merchants,  Philadelphia. 

Boston,  March  31,  1863. 

"On  the  above  terms  and  conditions,  please  deliver  on  board,  at 
your  wharves   at  Pliiladelphia,  to  be  shipped   to  Cambridge  port,  10 

feet  of  water,  7  bridges,  1000  tons Sivatara;  800  Stove,  200 

Egg;  Swatara  $4-50. 

"Terms  cash,  or  approved  paper  at  interest,  added  from  date  of 
bill  of  lading,  or  other  proof  of  shipment ;  United  States  tax  to  be 
added.  We  zvill  send  our  oimt  vessels.  After  first  cargo  is  shipped, 
the  purchaser  has  the  right  to  refuse  the  balance  if  not  satisfactory. 

"T.  P.  Lerned  &  Son." 

At  the  same  time  Betteley  signed  the  name  of  "Wannemacher  & 
Maxfield,  by  Albert  Betteley,"  to  a  memorandum  precisely  similar  to 
the  above  in  every  respect,  except  that  the  name  of  the  plaintififs  was 
not  signed  to  it,  and  delivered  the  same  to  the  plaintiffs.  Two  or 
three  weeks  afterwards  Betteley,  as  agent  of  the  defendants,  wrote 
upon  the  back  of  the  memorandum  delivered  to  him  by  the  plaintififs 
these  words :  "To  be  shipped  immediately,  if  vessels  are  not  sent ;" 
and  the  plaintiffs  signed  the  same,  and  redelivered  the  memorandum 
to  him.  Both  of  the  above  papers  were  put  in  evidence  by  the  plain- 
tiffs, the  one  signed  by  them  being  produced  by  the  defendants  on  no- 
tice. The  price  of  coal  subsequently  increased  in  the  market,  and  the 
defendants  refused  to  deliver  the  said  one  thousand  tons. 

Upon  the  introduction  of  this  evidence,  the  judge  ruled  that  the 
action  could  not  be  maintained,  and  a  verdict  was  accordingly  taken 
for  the  defendants.     The  plaintiffs  alleged  exceptions. 

Hoar,  J.  The  ruling  to  which  exceptions  were  taken  at  the  trial 
was  this:  that  the  plaintiffs  could  not  maintain  their  action  upon 
the  contract  set  forth  in  the  declaration,  because  it  was  a  contract  for 
the  sale  of  merchandise  for  the  price  of  more  than  fifty  dollars,  and 
there  was  no  acceptance  of  any  part  of  the  goods,  or  giving  anything 
in  earnest  to  bind  the  bargain,  of  part  payment,  and  no  sufficient  note 


740  STATUTE    OP   FRAUDS  (Ch.  8 

or  memorandum  in  writing  of  the  bargain  made  and  signed  by  tlie 
defendants,  or  by  any  person  thereunto  by  them  lawfully  authorized. 
Gen.  Sts.  c.  105,  §  5.  And  the  question  before  us  is  of  the  sufficiency 
of  the  memorandum  produced. 

The  first  objection  is,  that  neither  the  memorandum  signed  by  the 
purchasers  and  delivered  to  the  sellers,  nor  the  counterpart  signed  by 
the  sellers  and  delivered  to  the  purchasers,  contains  in  itself  a  com- 
plete statement  of  the  bargain;  that  there  is  nothing  in  the  papers 
themselves  by  which  they  can  be  connected,  and  it  is  not  sufficient  to 
connect  them  by  parol;  and  that  if  connected  they  are  only  orders, 
and  do  not  amount  to  a  contract. 

On  examining  the  memorandum  retained  by  the  sellers,  which  is 
signed  by  the  plaintiffs,  we  think  it  is  a  complete  memorandum  of 
the  bargain  proved,  and  would  undoubtedly  have  been  sufficient  in 
an  action  by  the  defendants  against  the  plaintiff's.  It  must  be  ob- 
served that  the  contract  itself,  and  the  memorandum  which  is  neces- 
sary to  its  validity  under  the  statute  of  frauds,  are  in  their  nature 
distinct  things.  The  statute  presupposes  a  contract  by  parol.  Alarsh 
v.  Hyde,  3  Gray,  333.  The  contract  may  be  made  at  one  time,  and 
the  note  or  memorandum  of  it  at  a  subsequent  time.  The  contract 
may  be  proved  by  parol,  and  the  memorandum  may  be  supplied  by 
documents  and  letters,  written  at  various  times,  if  they  all  appear  to 
have  relation  to  it,  and  if  coupled  together,  they  contain  by  statement 
or  reference  all  the  essential  parts  of  the  bargain,  signed  by  the  party 
to  be  charged  or  his  agent.     Williams  v.  Bacon,  2  Gray,  387. 

Now  it  was  proved  by  parol  testimony  that  the  contract  declared 
on  was  made  orally  by  the  defendants,  through  their  agent,  with  the 
plaintiff*;  and  that  the  memorandum  was  delivered  to  the  defendants 
by  the  plaintiffs  as  a  statement  of  the  terms  of  the  bargain.  In  the 
printed  part,  it  is  spoken  of  as  "this  contract,"  and  "the  contract." 
It  recites  that  "every  effort  will  be  made  for  the  fulfilment  of  this 
contract."  It  then  contains  a  request  to  the  defendants  to  deliver  the 
coal,  "on  the  above  terms  and  conditions,"  "at  your  wharves  at  Phil- 
adelphia"— the  defendants'  place  of  business — "to  be  shipped  to  Cam- 
bridgeport" — the  plaintiff's'  place  of  business.  The  quantity,  price, 
and  1-erms  of  payment  are  then  stated.  It  says,  "we  will  send  our 
own  vessels,"  an  agreement  to  receive ;  and  concludes  with  an  option 
to  "the  purchaser"  to  refuse  all  but  the  first  cargo  if  that  is  not  satis- 
factory. That  there  is  a  contract,  a  seller,  a  purchaser,  a  thing  sold, 
a  price,  a  place  of  delivery,  and  terms  of  payment,  all  sufficiently  ap- 
pear. It  is  true  that  part  of  the  paper  is  in  form  an  order;  but  we 
can  have  no  doubt  that,  taking  the  whole  together,  it  shows  an  agree- 
ment to  purchase.  As  was  said  by  Mansfield,  C.  J.,  in  Allen  v.  Ben- 
net,  3  Taunt.  169:  "The  defendant's  counsel  distinguishes  between 
an  order  and  an  agreement  to  buy ;  but  if  I  go  to  a  shop  and  order 
goods  do  not  I  agree  to  buy  them?" 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  741 

The  only  defect,  then,  is  the  want  of  the  signature  of  the  defend- 
ants or  that  of  their  authorized  agent.  If  this  had  been  the  only 
paper  executed,  it  would  deserve  serious  consideration,  whether,  if 
shown  to  have  been  made  as  a  memorandum  of  a  bargain  concluded 
between  the  parties,  delivered  as  such  by  the  plaintiffs,  and  accepted 
as  such  by  the  agent  of  the  defendants,  the  printed  name  of  the  de- 
fendants would  not  have  been  sufficient,  upon  the  authorities,  to  an- 
swer the  requirements  of  the  statute  as  a  signature  by  them.  Saund- 
erson  v.  Jaciv.on,  3  Esp.  R.  180;   s.  c.  2  B.  &  P.  238. 

But  we  do  not  put  the  case  on  this  ground,  because  the  counterpart 
of  the  contract,  delivered  by  the  defendants  to  the  plaintiffs,  is  signed 
by  them  through  their  agent  Betteley.  As  a  separate  paper,  that  is  in 
its  turn  defective,  by  reason  of  not  containing  the  name  of  the  pur- 
chaser. But  the  two  papers  were  prepared  at  one  time,  and  delivered 
simultaneously  as  parts  of  the  same  transaction.  The  one  produced 
by  the  plaintiffs  is  signed  so  as  to  charge  the  defendants.  They  gave 
to  the  defendants  one  by  which  they  were  themselves  bound.  The 
two  show  clearly,  when  construed  by  their  own  language  as  applied 
to  the  existing  circumstances,  which  party  was  the  seller,  and  which 
the  purchaser.  And  we  can  see  no  reason  upon  principle  or  author- 
ity why  they  should  not  have  the  same  effect,  as  if  both  the  signatures 
were  to  the  same  paper.  The  intrinsic  evidence  which  they  afford 
that  they  refer  to  the  same  transaction  is  very  strong,  and  competent 
for  the  consideration  of  a  jury;  and,  in  the  absence  of  all  proof  that 
a  precisely  similar  contract  was  made  by  either  party  with  any  other 
person,  would  be  extremely  cogent. 

The  case  does  not  much  resemble  any  of  those  cited  for  the  de- 
fendants, in  which  the  doctrine  has  been  stated  that  when  the  mem- 
orandum is  made  out  from  several  papers  they  must  be  shown  upon 
their  face  to  have  a  mutual  relation  to  each  other ;  and  that  this 
relation  cannot  be  established  by  extrinsic  evidence.  This  is  the 
rule  of  the  text  books  (2  Kent,  Com.  [6th  Ed.]  511;  Browne  on 
St.  of  Frauds,  §  350j ;  and  its  general  correctness  is  well  settled 
(Morton  v.  Dean,  13  Mete.  385).  Most  of  the  cases  to  which  we  have 
been  referred  have  been  those  of  sales  at  auction,  where  the  condi- 
tions of  sale  were  not  contained  in  or  annexed  to  the  memorandum 
which  was  signed.  Here  the  whole  terms  and  conditions  of  the  bar- 
gain are  stated  alike  in  the  two  copies  of  the  memorandum,  one  of 
which  is  signed  by  each  party. 

There  are,  however,  two  specific  objections  which  deserve  atten- 
tion. In  each  paper  the  statement  is  made,  "We  will  send  our  own 
vessels ;"  and  as  they  are  signed,  one  by  the  plaintiffs  and  the  other 
by  the  defendants,  it  is  urged  that  the  meaning  of  the  word  "we" 
becomes  uncertain,  or  that  the  two  parts  of  the  memorandum  are 
made  contradictory.  Beside  this,  one  part  of  the  contract  was  al- 
tered by  the  additional  agreement  written  by  the  defendants'  agent 


742  STATUTE    OF   FRAUDS  (Cll.  8 

and  signed  by  the  plaintiffs,  "to  be  shipped  immediately  if  vessels 
are  not  sent;"  and  no  corresponding  alteration  has  been  signed  by 
the  defendants. 

The  first  difficulty  seems  to  be  capable  of  a  satisfactory  solution. 
The  printed  part  of  the  memorandum  clearly  contemplates  that  the 
shipment  of  the  coal  is  to  be  made  in  vessels  to  be  furnished  by 
the  vendors;  although  they  assumed  no  responsibility  about  the  ves- 
sels except  reasonable  diligence  in  procuring  them.  The  insertion 
of  the  written  clause,  "we  will  send  our  own  vessels,"  could  only 
be  explained  as  importing  a  change  in  this  respect.  In  the  part  of 
the  contract  signed  by  the  plaintiffs,  "we''  would  mean  the  purchaser. 
In  the  other  part  the  phrase  follows  the  expression  "your  wharves," 
when  speaking  of  the  wharves  of  the  defendant ;  and  "we"  is  thus 
used  in  contradistinction  from  "you,"  the  vendors.  The  agent  of 
the  vendors  signs  the  paper;  but  still,  if  not  with  perfect  grammati- 
cal correctness  of  expression,  it  is  sufficiently  obvious  that  in  using 
the  word  "we"  he  means  the  purchasers. 

The  additional  clause  written  upon  the  part  of  the  memorandum 
retained  by  the  defendants  presents  a  more  difficult  question,  though 
it  shows  very  clearly  who  were  meant  by  "we"  in  the  part  of  the 
contract  just  considered.  But  it  is  obvious  that  it  was  not  meant 
to  impair  the  contract  which  had  been  made.  It  is  an  additional  stip- 
ulation to  take  effect  upon  a  contingency  which  has  not  happened. 
The  evidence  showed  that  vessels  were  sent  by  the  plaintiffs.  And 
if  the  contingency  had  happened,  it  was  only  the  substitution  of  a 
new  mode  of  performance,  of  which  the  defendants  or  plaintiffs 
might  have  availed  themselves,  even  if  made  only  by  parol.  Cum- 
mings  V.  Arnold,  3  Mete.  486,  37  Am.  Dec.  155;  Stearns  v.  HaU,  9 
Cush.  31.  If  it  were  not  binding  on  the  defendants,  because  no  mem- 
orandum of  it  was  signed  by  them,  it  could  not  prevent  the  plain- 
tiffs from  enforcing  the  original  contract.  It  is  obviously  inadmissi- 
ble for  the  defendants  to  set  it  up  as  changing  the  contract,  as  evi- 
denced by  the  completed  memorandum,  and  at  the  same  time  to  deny 
its  obligation  for  want  of  their  own  signature. 

It  was  held  by  the  English  Court  of  Exchequer,  in  the  recent  case 
of  Bluck  V.  Gompertz,  7  Welsh.,  Hurlst.  &  Gord,  862,  that  where  a 
correction  was  made  upon  the  memorandum  of  a  contract  by  the  de- 
fendant, and  signed  only  by  the  plaintiff,  the  original  signature  of 
the  defendant  was  a  sufficient  signing  under  the  statute.  That  deci- 
sion would  be  applicable  to  the  present  case,  if  the  memorandum  had 
been  contained  in  one  paper,  or  if  the  indorsement  had  been  made 
upon  the  part  containing  the  signature  of  the  defendants'  agent. 
It  is  more  doubtful  whether  it  can  be  held  to  have  the  same  effect 
where  the  memorandum  is  contained  on  separate  papers,  and  we  do 
not  put  the  decision  on  that  ground. 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  743 

The  other  grounds  of  exception  taken  at  the  trial  have  not  been 
insisted  on  by  the   plaintiff's   counsel,  and  are  clearly  untenable. 
Exceptions  sustained. 

STEAD  V.  DAWBER  et  al. 
(Court  of  Queen's  Bench,  1839.     10  AdoL  &  E.  57.) 

Lord  Denman,  C.  J.,^-  in  this  term,  (May  7th),  delivered  the  judg- 
ment of  the  Court. 

This  was  an  action  to  recover  damages  for  the  non-delivery  of  a 
cargo  of  bones.  By  the  sold  note,  they  were  to  be  shipped  on  the 
20th  to  the  22d  of  May,  and  to  be  paid  for  by  an  acceptance  at  three 
months  from  the  delivery.  The  22d  happened  to  be  on  a  Sunday ; 
and,  a  conversation  taking  place  between  the  defendant  and  the  plain- 
tiff's agent  respecting  this,  upon  the  suggestion  of  the  defendant,  the 
Monday  or  Tuesday  immediately  following,  were  substituted  as  the 
days  of  delivery.  The  agent  who  proved  this,  also  stated  that  the 
time  for  giving  the  acceptance  would,  in  consequence,  be  also  propor- 
tionably  enlarged.  The  main  question  at  the  trial,  and  before  us,  was, 
whether  this  enlargement  of  the  time  was  an  alteration  of  the  con- 
tract, or  only  a  dispensation  with  its  performance  as  to  time.  The 
declaration,  after  setting  out  the  original  contract,  stated  that  the 
plaintiff,  at  the  special  instance  of  the  defendants,  gave  them  time  for 
the  delivery  to  the  24th  May,  and  averred  a  demand  on  the  24th.  The 
fourth  plea  alleged  that  this  giving  time  was  parcel  of  a  contract  with- 
in the  Statute  of  Frauds ;  that  there  was  no  acceptance  wholly  or  in 
part,  or  any  earnest,  or  part  payment ;  and  that  there  was  no  note  or 
memorandum  in  writing  of  it :  and  the  replication  traversed  its  being 
parcel  of  the  contract. 

The  principles  on  which  this  case  must  be  decided,  are  clear  and 
admitted.  The  contract  is  a  contract  within  the  Statute  of  Frauds, 
and  cannot  be  proved,  as  to  any  essential  parcel  of  it,  by  merely  oral 
testimony :  for  to  allow  such  a  contract  to  be  proved  partly  by  writ- 
ing and  partly  by  oral  testimony  would  let  in  all  the  mischiefs  which 
it  was  the  object  of  the  statute  to  exclude.  Many  cases  were  cited  in 
the  argument  on  both  sides,  the  plaintiff's  counsel  rely  chiefly  on  Cuff 
V.  Penn,  1  M.  &  S.  21 ;  the  defendants'  on  Goss  v.  Lord  Nugent,  5  B. 
&  Ad.  58,  the  decision  in  which  it  is  certainly  not  easy  to  reconcile 
with  that  in  the  former.  But  it  seems  to  us  that  we  are  mainly  called 
on  to  decide  a  question  of  fact ;  what,  namely,  was  the  intention  of 
the  parties  in  the  arrangement  come  to,  for  substituting  the  24th  for 
the  22d,  as  the  day  of  delivery ;  did  they  intend  to  substitute  a  new 
contract  for  the  old  one,  the  same  in  all  other  respects,  except  those 

5  2  The  statement  of  facts  is  omitted. 


744  STATUTE    OF   FRAUDS  (Ch.  8 

of  the  day  of  delivery,  and  date  of  the  accepted  bill,  with  the  old  one? 
Where  the  variation  is  so  slight  as  in  the  present  case,  and  the  con- 
sequences so  serious,  the  mind  comes  reluctantly  to  this  conclusion ; 
and  this  reluctance  is  increased  by  considering  in  how  many  instances 
of  written  contracts  within  the  Statute  of  Frauds,  slight  variations 
are  made  at  the  request  of  one  or  other  of  the  parties,  without  the 
least  idea,  at  the  time,  of  defeating  the  illegal  remedy  or  the  original 
contract.  But  the  same  principle  must  be  applied  to  the  variation  of 
a  day  and  a  week  or  a  month ;  and  it  seems  impossible  to  suppose 
that,  when  the  plaintiff  had  agreed  to  substitute  the  24th  for  the  22d, 
either  party  imagined  that  an  action  could  be  brought  for  a  non-de- 
livery on  the  22d,  or  that  a  delivery  on  the  24th  would  not  be  a  legal 
performance  of  the  contract  existing  between  them. 

It  was  urged  by  the  plaintiff's  counsel  that  the  defendant's  argu- 
ment reduced  him  to  an  inconsistency;  that  he  alleged,  on  the  one 
hand,  an  alteration  of  the  contract  by  parol,  and  yet,  on  the  other,  as- 
serted that  such  alteration  by  parol  could  not  be  made.  But  this  is,  in 
truth,  to  confound  the  contract  with  the  remedy  upon  it.  Independ- 
ently of  the  statute,  there  is  nothing  to  prevent  the  total  waiver,  or 
the  partial  alteration  of  a  written  contract,  not  under  seal  by  parol 
agreement ;  and  in  contemplation  of  law,  such  a  contract  so  altered 
subsists  between  these  parties :  but  the  statute  intervenes,  and,  in  the 
case  of  such  a  contract,  takes  away  the  remedy  by  action.  It  cannot 
be  said  that  the  time  of  delivery  was  not  originally  of  the  essence  of 
this  contract :  the  evidence  shews  that  the  value  of  the  article  was 
fluctuating;  and  the  time  of  payment  was  to  be  calculated  from  the 
time  of  delivery.  \Miere  these  circumstances  exist,  it  cannot  in  strict 
reasoning  be  argued,  as  was  said  by  Lord  Ellenborough,  in  the  case  of 
Cuff  V.  Penn,  1  M.  &  S.  21,  that  the  contract  remained,  although  there 
was  an  agreed  substitution  of  other  days  than  those  originally  specified 
for  its  performance.  Nor  does  any  difficulty  arise  from  the  want  of 
consideration  for  the  plaintiff's  agreement  to  consent  to  the  change  of 
days ;  for  the  same  consideration  which  existed  for  the  old  agree- 
ment, is  imported  into  the  new  agreement,  which  is  substituted  for  it. 

Putting,  therefore,  that  construction  on  what  passed  between  these 
parties  which  best  effectuates  their  intention,  and  giving  also  full  ef- 
fect, as  we  ought,  to  the  salutary  provisions  of  the  Statute  of  Frauds, 
we  think  that  this  giving  of  time  was  parcel  of  the  contract,  and  con- 
sequently, that  the  verdict  on  the  fourth  plea  should  be  entered  for 
the  defendants. 

Rule  absolute  accordingly.^^ 

53  In  Marshall  v.  Lyon.  6  M.  &  W.  109  (1840").  Parke,  B.,  said  that  "the  case 
of  Cliff  v.  Penn.  which  had  before  been  very  much  doubted,  appears  to  have 
been  overruled  by  Stead  v.  Dawber." 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  745 

NOBLE  V.  WARD  et  al. 

(Exchequer  Chamber,  1S67.     L.  R.  2  Exch.  135.) 

WiLivi:s,  J.  ^*  This  is  an  appeal  from  the  judgment  of  the  Court 
of  Exchequer  making  absolute  a  rule  to  set  aside  a  nonsuit,  and  for  a 
new  trial.  The  action  was  brought  for  non-acceptance  of  goods  pur- 
suant to  a  contract  dated  the  18th  of  August,  by  which  the  goods 
were  to  be  delivered  in  a  certain  time.  The  defendants  pleaded  that 
the  contract  was  rescinded  by  mutual  consent.  At  the  trial,  they  es- 
tablished that,  on  the  27th  of  September,  before  any  breach  of  that 
contract,  it  was  agreed  between  the  plaintiff  and  the  defendants  that 
a  previous  contract  of  the  12th  of  August  should  be  rescinded  (as  to 
which  no  question  is  made),  that  the  time  for  delivering  under  the 
contract  of  the  18th  should  be  extended  for  a  fortnight;  and  other 
provisions  were  made  as  to  taking  back  certain  goods,  which  we  need 
not  further  notice.  The  contract  of  the  27th  of  September,  however, 
was  invalid,  for  want  of  compliance  with  the  formalities  required  by 
section  17  of  the  Statute  of  Frauds.  The  defendants  contended  that 
the  effect  of  the  contract  to  extend  the  time  for  delivery  was  to  re- 
scind the  contract  of  the  18th  of  August;  and  if  the  former  contract 
had  been  in  a  legal  form,  so  as  to  be  binding  on  the  parties,  that  con- 
tention might  have  been  successful,  so  far  as  a  change  in  the  mode 
of  carrying  out  a  contract  can  be  said  to  be  a  rescission  of  it ;  but 
the  defendants  maintained  that  the  effect  was  the  same,  although  the 
contract  was  invalid. 

In  setting  aside  the  nonsuit  directed  by  the  learned  judge  who  tried 
the  cause,  the  Court  of  Exchequer  dissented  from  that  view,  and 
held  that  what  took  place  on  the  27th  must  be  taken  as  an  entirety, 
that  the  agreement  then  made  could  not  be  looked  on  as  valid,  and 
that  no  rescission  could  be  effected  by  an  invalid  contract.  And  we 
are  of  opinion  that  the  Court  of  Exchequer  was  right.  Mr.  Holker 
has  contended,  that  though  the  contract  of  the  27th  of  September 
cannot  be  looked  on  as  a  valid  contract  in  the  way  intended  by  the 
parties,  yet  since,  if  valid,  it  would  have  had  the  effect  of  rescinding 
the  contract  of  the  18th,  and  since  the  parties  might  have  entered  into 
a  mere  verbal  contract  to  rescind  simpliciter.  we  are  to  say  that  what 
would  have  resulted  if  the  contract  had  been  valid,  will  take  place 
though  the  contract  is  void ;  or,  in  other  words,  that  the  transaction 
will  have  the  effect  which,  had  it  been  valid,  the  parties  would  have 
intended,  though  without  expressing  it,  although  it  cannot  operate  as 
they  intended  and  expressed.  But  it  would  be  at  least  a  question 
for  the  jury,  whether  the  parties  did  intend  to  rescind — whether  the 
transaction  was  one  which  could  not  otherwise  operate  according  to 

5  4  Part  of  the  opinion  is  omitted. 


746  STATUTE    OF   FRAUDS  (Ch.  8 

their  intention ;  and  a  material  fact  on  that  point  is,  that,  while  they 
expressly  rescinded  the  contract  of  the  12th  of  August,  they  simply 
made  a  contract  as  to  the  carrying  into  effect  that  of  the  18th,  though 
in  a  mode  different  from  what  was  at  first  contemplated. 

It  is  quite  in  accordance  with  the  cases  of  Doe  d.  Egremont  v. 
Courtenay,  11  Q.  B.  702,  and  Doe  d.  Biddulph  v.  Poole,  11  Q.  B.  713, 
overruling  the  previous  decision  of  Doe  d.  Egremont  v.  Forwood,  3 
Q.  B.  627  (see  11  O.  B.  72o),  to  hold  that,  where  parties  enter  into  a 
contract  which  would  have  the  effect  of  rescinding  a  previous  one, 
but  which  cannot  operate  according  to  their  intention,  the  new  con- 
tract shall  not  operate  to  aft'ect  the  previously  existing  rights.  This 
is  good  sense  and  sound  reasoning,  on  which  a  jury  might  at  least 
hold  that  there  was  no  such  intention.  And  if  direct  authority  were 
wanted  to  sustain  this  conclusion,  it  is  supplied  by  Moore  v.  Camp- 
bell, 10  Ex.  323,  23  L.  J.  (Ex.)  310,  where,  upon  a  plea  of  rescission, 
the  very  point  was  taken  by  Sir  Hugh  Hill,  who  would  no  doubt  have 
made  it  good  had  it  been  capable  of  being  established.  With  ref- 
erence to  his  argument  that  the  contract  was  rescinded,  Parke,  B., 
said  10  Ex.  at  p.  332 :  "We  do  not  think  that  this  plea  was  proved  by 
the  evidence.  The  parties  never  meant  to  rescind  the  old  agreement 
absolutely,  which  the  plea,  we  think,  imports.  If  a  new  valid  agree- 
ment substituted  for  the  old  one  before  breach  would  have  supported 
the  plea,  we  need  not  inquire,  for  the  agreement  was  void,  there  being 
neither  note  in  writing,  nor  part  payment,  nor  delivery,  nor  accept- 
ance, of  part  or  all."  And  he  adds:  "This  was  decided  by  the  cases 
of  Stead  v.  Dawber,  10  Ad.  &•  E.  57,  and  Marshall  v.  Lynn,  6  M.  & 
W.  109."     *     *     =*^ 

Blackburn,  Mkllor,  Montague,  Smith,  and  Lush,  JJ.,  con- 
curred. 

Judgment  affirmed. 


CUMMINGS  et  al.  v.  ARNOLD  et  al. 

{Supreme  Judicial  Court  of  Massachusetts,   1842.     3  Mete.  486,  37  Am.  Dec. 

155.) 

Wilde;,  J.  ^^  This  case  comes  before  us  on  exceptions  to  the  rul- 
ings of  the  court  at  the  trial,  whereby  the  evidence  oft'ered  by  the  de- 
fendants was  rejected  on  the  ground  that  the  facts  offered  to  be  prov- 
ed would  not  constitute  a  legal  defence.  The  action  is  founded  on  a 
written  contract,  by  which  the  defendants  undertook  to  deliver  to  the 
plaintiffs,  at  a  stipulated  price,  a  certain  quantity  of  cloths  for  print- 
ing, from  time  to  time,  between  the  26th  day  of  October,  1838,  and  the 
first  of  March  following. 

5  5  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  747 

The  defendants  admit  that  the  written  contract  was  not  performed 
by  them  according  to  the  terms  of  it;  and  they  rely  on  two  oral 
agreements,  made  subsequently  to  the  execution  of  the  written  con- 
tract, by  the  last  of  which  it  was  agreed  that  the  plaintiffs  should  pay 
cash  for  the  goods  to  be  sent  to  them  by  the  defendants — they  dis- 
counting 5  per  cent,  on  the  stipulated  price,  whenever  the  goods  sent 
should  amount  to  the  value  of  $1000,  not  before  paid  for;  that,  un- 
der this  last  verbal  agreement,  the  defendants  delivered  150  pieces  of 
goods,  and  that  the  plaintiffs  refused  to  perform  said  agreement  on 
their  part.  The  defendants  also  offered  to  prove  that  each  of  these 
verbal  agreements  was  made  on  a  legal  and  good  consideration.  The 
question  is,  whether  these  facts,  if  proved,  would  constitute  a  legal 
defence  to  the  action. 

The  general  rule  is,  that  no  verbal  agreements  between  the  parties 
to  a  written  contract,  made  before  or  at  the  time  of  the  execution  of 
such  contract,  are  admissible  to  vary  its  terms  or  to  affect  its  con- 
struction. All  such  verbal  agreements  are  considered  as  varied  by 
and  merged  in  the  written  contract.  But  this  rule  does  not  apply  to 
a  subsequent  oral  agreement  made  on  a  new  and  valuable  considera- 
tion, before  the  breach  of  the  contract.  Such  a  subsequent  oral  agree- 
ment may  enlarge  the  time  of  performance,  or  may  vary  any  other 
terms  of  the  contract,  or  may  waive  and  discharge  it  altogether. 

This  rule  is  laid  down  by  Lord  Denman,  in  Goss  v.  Lord  Nugent, 
5  Barn.  &  Adoph.  65,  as  a  well  established  principle,  in  these  terms: 
"After  the  agreement  has  been  reduced  into  writing,  it  is  competent 
to  the  parties,  at  any  time  before  breach  of  it,  by  a  new  contract  not 
in  writing,  either  altogether  to  waive,  dissolve,  or  annul  the  former 
agreement,  or  in  any  manner  to  add  to,  or  subtract  from,  or  vary,  or 
qualify  the  terms  of  it,  and  thus  to  make  a  new  contract;  which  is  to 
be  proved,  partly  by  the  written  agreement,  and  partly  by  the  subse- 
quent verbal  terms  engrafted  upon  what  will  be  thus  left  of  the  writ- 
ten agreement." 

The  same  principle,  substantially,  is  maintained  by  numerous  cases 
both  in  England  and  in  this  country.     *     *     * 

But  the  plaintiffs'  counsel  contends,  that  however  the  general  prin- 
ciple may  be,  as  to  the  effect  of  a  parol  agreement  on  a  previous  writ- 
ten contract,  it  is  not  applicable  to  the  present  case,  the  parol  agree- 
ment being  void  by  the  statute  of  frauds ;  and  that  to  allow  a  parol 
agreement  to  be  engrafted  upon  a  written  contract,  would  let  in  all 
the  inconveniences  which  were  intended  to  be  obviated  by  the  stat- 
ute. In  considering  this  objection,  we  have  met  with  many  conflict- 
ing decisions,  but  for  which,  we  should  have  had  but  little  difficulty 
in  disposing  of  the  question  raised.  And  notwithstanding  the  doubts 
excited  by  some  of  these  decisions,  we  have  been  brought  to  a  con- 
clusion, which  coincides,  as  we  think,  with  the  true  meaning  of  the 


748  STATUTE    OF   FRAUDS  (Cll.  8 

Statute.  The  language  of  the  4th  section,  (Rev.  Sts.  c.  74)  on  which 
the  question  depends,  is  pecuUar.  It  does  not  require  that  the  note 
or  memorandum  in  writing  of  the  bargain  should  be  signed  by  both 
the  contracting  parties,  but  only  "by  the  party  to  be  charged  thereby, 
or  by  some  person  thereunto  by  him  lawfully  authorized." 

"The  principal  design  of  the  statute  of  frauds  was,"  as  Lord  Ellen- 
borough  remarks,  in  Cuff  v.  Penn,  1  M.  &  S.  26,  "that  parties  should 
not  have  imposed  on  them  burdensome  contracts  which  they  never 
made,  and  be  fixed  with  goods  which  they  never  contemplated  to  pur- 
chase." The  statute,  therefore,  requires  a  memorandum  of  the  bar- 
gain to  be  in  writing,  that  it  may  be  made  certain ;  but  it  does  not  un- 
dertake to  regulate  its  performance.  It  does  not  say  that  such  a  con- 
tract shall  not  be  varied  by  a  subsequent  oral  agreement  for  a  sub- 
stituted performance.  That  is  left  to  be  decided  by  the  rules  and 
principles  of  law  in  relation  to  the  admission  of  parol  evidence  to 
vary  the  terms  of  written  contracts.  We  have  no  doubt,  therefore, 
that  accord  and  satisfaction,  by  a  substituted  performance,  would  be 
a  good  defence  in  this  action.  So  if  the  plaintiffs  had  paid  for  the 
goods,  according  to  the  oral  agreements  to  pay  cash  or  give  security, 
and  the  defendants  had  thereupon  completed  the  delivery  of  the  goods 
contracted  for,  it  would  have  been  a  good  performance  of  the  writ- 
ten contract.  This  has  been  prevented,  (if  the  defendants  can  prove 
what  they  offered  to  prove,)  by  the  plaintiffs'  refusal  to  perfom  on 
their  part  a  fair  and  valid  contract.  And  it  is  a  well  settled  principle, 
that  if  two  contracting  parties  are  bound  to  do  certain  reciprocal  acts 
simultaneously,  the  off'er  of  one"  of  the  parties  to  perform  the  con- 
tract on  his  part,  and  the  refusal  of  the  other  to  comply  with  the  con- 
tract on  his  part,  will  be  equivalent  to  a  tender  and  refusal ;  and  in 
the  present  case,  we  think  it  equivalent  to  an  accord  and  satisfaction, 
which  was  prevented  by  the  fault  of  the  plaintiffs,  who  agreed,  for  a 
valuable  consideration — if  what  the  defendants  offered  to  show  be 
true — to  vary  the  terms  of  the  written  contract  as  to  the  time  of  pay- 
ment, and  afterwards  refused  to  comply  with  their  agreement.  If  the 
defendants  on  their  part  had  refused  to  perform  the  verbal  agreement, 
then  indeed  it  could  not  be  set  up  in  defence  of  the  present  action ;  for 
the  party,  who  sets  up  an  oral  agreement  for  a  substituted  perform- 
ance of  a  written  contract,  is  bound  to  prove  that  he  has  performed, 
or  has  been  ready  to  perform,  the  oral  agreement. 

This  distinction  avoids  the  difficulty  suggested  in  some  of  the  cases 
cited,  where  it  is  said,  that  to  allow  a  party  to  sue  partly  on  a  writ- 
ten and  partly  on  a  verbal  agreement,  would  be  in  direct  opposition 
to  the  requisitions  of  the  statute ;  and  it  undoubtedly  would  be ;  but 
no  party  having  a  right  of  action  can  be  compelled  to  sue  in  this  form. 
He  may  always  declare  on  the  written  contract ;  and  unless  the  de- 
fendant can  prove  performance  according  to  the  terms  of  the  con- 


Sec.  6)  THE    NOTE   OR    MEMORANDUM  749 

tract,  or  according  to  the  agreement  for  a  substituted  performance, 
the  plaintiff  would  be  entitled  to  judgment.  We  think,  therefore,  that 
the  evidence  of  the  oral  agreements,  oft'ered  at  the  trial,  should  have 
been  admitted;  the  same  not  being  within  the  statute  of  fravids,  and 
the  evidence  being  admissible  by  the  rules  of  law. 

In  support  of  this  view  of  the  case,  I  shall  not  attempt  to  reconcile 
all  the  conflicting  opinions  which  have  been  held  in  similar  or  nearly 
similar  cases,  some  of  which  appear  to  have  been  decided  on  very 
subtle  and  refined  distinctions.  I  will,  however,  refer  to  a  few  deci- 
sions which  bear  directly  on  the  present  case.  The  case  of  Cuff  v. 
Penn,  1  M.  &  S.  21,  is  a  strong  authority  in  favor  of  the  defendants, 
as  the  facts,  on  which  the  decision  in  that  case  depended,  are  in  all 
respects  substantially  similar  to  those  oft'ered  to  be  proved  in  this  ac- 
tion. That  was  an  action  of  assumpsit  for  not  accepting  a  quantity 
of  bacon,  which  by  a  written  contract  the  defendant  agreed  to  pur- 
chase of  the  plaintiff,  to  be  delivered  at  certain  fixed  times.  After  a 
part  of  the  bacon  had  been  delivered,  the  defendant  requested  the 
plaintiff",  as  the  sale  was  dull,  not  to  press  the  delivery  of  the  residue, 
and  the  plaintiff  assented.  The  defendant  afterwards  refused  to  ac- 
cept the  residue,  and  set  up  the  statute  of  frauds  in  defence ;  but  the 
court  held,  that  there  was  a  parol  dispensation  of  the  performance  of 
the  written  contract  as  to  the  times  of  delivery,  which  was  not  af- 
fected by  the  statute  of  frauds.  Lord  Ellenborough  says,  "I  think 
this  case  has  been  argued  very  much  on  a  misunderstanding  of  the  stat- 
ute of  frauds,  and  the  question  has  been  embarrassed  by  confounding 
two  subjects  quite  distinct ;  namely,  the  provision  of  the  statute,  and 
the  rule  of  law  whereby  a  party  is  precluded  from  giving  parol  evi- 
dence to  vary  a  written  contract."  "It  is  admitted,"  he  adds,  in  an 
other  part  of  his  opinion,  "that  there  was  an  agreed  substitution  of 
other  days  than  those  originally  specified  for  the  performance  of  the 
contract :  still  the  contract  remains.  Suppose  a  delivery  of  live  hogs 
instead  of  bacon  had  been  substituted  and  accepted ;  might  not  that 
have  been  given  in  evidence  as  accord  and  satisfaction?  So  here  the 
parties  have  chosen  to  take  a  substituted  performance." 

The  principle  on  which  this  case  was  decided  is  laid  down  in  sev- 
eral other  cases,  some  of  which  have  been  already  cited  on  the  other 
point  of  defence. 

At  the  argument  of  the  case  of  Goss  v.  Lord  Nugent,  Parke,  J.,  re- 
marked, that  "in  Cuff  v.  Penn,  and  some  other  cases  relating  to  con- 
tracts for  the  sale  of  goods,  above  £10,  it  has  been  held,  that  the  time 
in  which  the  goods,  by  the  agreement  in  writing,  were  to  be  delivered, 
might  be  extended  by  a  verbal  agreement.  But  I  never  could  under- 
stand the  principle  on  which  those  cases  proceeded ;  for  the  new  con- 
tract to  deliver  within  the  extended  tkne  must  be  proved  partly  by 
written  and  partly  by  oral  evidence."    But  there  is  no  necessity  for  the 


750  STATUTE    OF   FRAUDS  (Ch.  8 

plaintiff  to  declare  partly  on  the  written  and  partly  on  the  oral  agree- 
ment. He  may  always,  as  before  remarked,  declare  on  the  written 
contract,  and  the  defendant  will  be  bound  to  prove  a  performance  ac- 
cording to  the  terms  of  it,  or  according  to  the  terms  of  a  substituted 
performance ;  and  performance  in  either  way  may  be  proved  by  parol 
evidence.  McCombs  v.  McKennan,  2  Watts  &  S.  (Pa.)  218,  37  Am. 
Dec.  505. 

Lord  Denman,  who  delivered  the  opinion  of  the  court  in  Goss  v. 
Lord  Nugent,  does  not  question  the  correctness  of  the  decision  in 
Cuff  v.  Penn;  and  his  remarks  on  another  branch  of  the  statvUe  of 
frauds  seem  to  be  confirmatory  of  the  principle  laid  down  by  Lord 
Ellenborough  in  the  latter  case.  "It  is  to  be  observed,"  he  says,  "that 
the  statute  does  not  say  in  distinct  terms,  that  all  contracts  or  agree- 
ments concerning  the  sale  of  lands  shall  be  in  writing;  all  that  it  en- 
acts is,  that  no  action  shall  be  brought  unless  they  are  in  writing ;  and 
there  is  no  clause  which  requires  the  dissolution  of  such  contracts  to 
be  in  writing."  In  that  action,  however,  the  plaintiff  declared 
partly  on  the  written  and  partly  on  the  verbal  contract,  and  on  that 
ground  it  was  rightfully  enough  decided  that  the  action  could  not  be 
maintained. 

In  Stowell  V.  Robinson,  3  Bing.  N.  R.  928,  and  5  Scott,  196,  it  was 
held,  that  the  time  for  the  performance  of  a  written  contract  for  the 
sale  of  lands  could  not  be  enlarged  by  a  subsequent  oral  agreement, 
although  that  agreement  was  pleaded  by  the  defendant  as  a  bar  to  the 
action.  The  plea  was,  that  at  the  time  stipulated  for  the  performance 
of  the  written  contract,  neither  party  was  ready  to  complete  the  sale; 
and  the  time  for  the  performance  was  agreed  by  the  parties  to  be  post- 
poned. That  decision  seems  to  be  founded  on  the  doubt  suggested 
by  Parke,  J.,  in  Goss  v.  Lord  Nugent,  and  upon  the  decision  in  that 
case,  without  noticing  the  distinction  in  the  two  cases.  And  it  ap- 
pears to  us.  that  the  case  of  Stowell  v.  Robinson  was  decided  on  a  mis- 
taken construction  and  application  of  the  statute  of  frauds ;  and  that 
the  distinction  between  the  contract  of  sale,  which  is  required  to  be  in 
writing,  and  its  subsequent  performance,  as  to  which  the  statute  is 
silent,  was  overlooked,  or  not  sufficiently  considered  by  the  court ; 
otherwise,  the  decision  perhaps  might  have  been  dift"erent.  We  think 
there  is  no  substantial  difference,  so  far  as  it  relates  to  the  statute  of 
frauds,  between  the  plea  in  tliat  case  and  the  plea  of  accord  and  satis- 
faction, or  a  plea  that  the  written  contract  had  been  totally  dissolved, 
before  breach,  by  an  oral  agreement ;  either  of  which  pleas  would 
have  been  a  good  and  sufficient  bar  to  the  action.  We  are  aware  that 
the  principle  on  which  Stowell  v.  Robinson  was  decided,  is  supported 
by  other  English  cases  cited ;  but  the  principle  on  which  the  case  of 
Cuff  V.  Penn  was  decided,  is  in  our  judgment  more  satisfactory,  and 
better  adapted  to  the  administration  of  justice  in  this  and  similar  cases. 


Sec.  6)  THIO    NOTE  OR    MEMORANDUM  751 

It  is  to  be  observed  in  the  present  case,  that  the  oral  agreements, 
offered  to  be  proved  by  the  defendants,  did  not  vary  the  terms  of  the 
written  contract  as  to  its  performance  on  their  part;  the  only  altera- 
tion was  as  to  the  time  of  payment  by  the  plaintiffs.  Such  an  altera- 
tion, made  on  a  good  consideration,  and  before  any  breach  of  the  con- 
tract, may,  we  think,  be  proved,  without  any  infringement  of  the  stat- 
ute of  frauds  or  any  principle  of  law. 

New  trial  granted. ^^ 

B6  For  a  criticism  of  this  case,  see  Williston,  Sales,  §  121. 


APPENDIX 


SALES  ACT 

AN  ACT  TO  MAKE  UNIFORM  THE  LAW  RELATING  TO 
THE  SALE  OF  GOODS 

[As  Approved  by  the  Commissioners  on  Unifonn  State  Laws} 


PART  I 

Formation  of  the  Contract 

Section  1. —  [Contracts  to  Sell  and  Sales.]  (1.)  A  contract  to  sell 
goods  is  a  contract  whereby  the  seller  agrees  to  transfer  the  property  in 
goods  to  the  buyer  for  a  consideration  called  the  price. 

(2.)  A  sale  of  goods  is  an  agreement  whereby  the  seller  transfers  the 
property  in  goods  to  the  buyer  for  a  consideration  called  the  price. 

(3.)  A  contract  to  sell  or  a  sale  may  be  absolute  or  conditional. 

(4.)  There  may  be  a  contract  to  sell  or  a  sale  between  one  part  owner  and 
another.  , 

Section  2. —  C Capacity — Idabilities  for  Necessaries.]  Capacity  to  buy 
and  sell  is  regulated  by  the  general  law  concerning  capacity  to  contract,  and 
to  transfer  and  acquire  property. 

Where  necessaries  are  sold  and  delivered  to  an  infant,  or  to  a  person  who 
by  reason  of  mental  incapacity  or  drunkenness  is  incompetent  to  contract, 
he  must  pay  a  reasonable  price  therefor. 

Necessaries  in  this  section  means  goods  suitable  to  the  condition  in  life  of 
such  infant  or  other  person,  and  to  his  actual  requirements  at  the  time  of 
delivery. 

Formalities  of  the  Contract 

Section  3. —  [Form  of  Contract  or  Sale.]  Subject  to  the  provisions  of 
this  act  and  of  any  statute  in  that  behalf,  a  contract  to  sell  or  a  sale  may 
be  made  in  writing  (either  with  or  without  seal),  or  by  word  of  mouth,  or 
partly  in  writing  and  partly  by  word  of  mouth,  or  may  be  inferred  from 
the  conduct  of  the  parties. 

Section  4. —  [Statute  of  Frauds.]  (1.)  A  contract  to  sell  or  a  sale  of 
any  goods  or  choses  in  action  of  the  value  of  five  hundred  dollars  or  upward 
shall  not  be  enforceable  by  action  unless  the  buyer  shall  accept  part  of  the 
goods  or  choses  in  action  so  contracted  to  be  sold  or  sold,  and  actually  re- 
ceive the  same,  or  give  something  in  earnest  to  bind  the  contract,  or  in  part 
paj^ment,  or  unless  some  note  or  memorandum  in  writing  of  the  contract  or 
sale  be  signed  by  the  party  to  be  charged  or  his  agent  in  that  behalf. 

WooDW.  Sales— 48  (753) 


754  APPENDIX  (Pt.  1 

(2.)  The  provisions  of  this  section  apply  to  every  such  contract  or  sale, 
notwithstanding  that  the  goods  may  be  intended  to  be  delivered  at  some 
future  time  or  may  not  at  the  time  of  such  contract  or  sale  be  actually  made, 
procured,  or  provided,  or  fit  or  ready  lor  delivery,  or  some  act  may  be  req- 
uisite for  the  making  or  completing  thereof,  or  rendering  the  same  tit  for 
dehvery;  but  if  the  ^oqiLs-  .are  to  be  manufactured  by  the  seller  cspec^aHy 
for  the  buyer  and  are  not  suitable  for  sale  to  others  in  the  uidinary  ■eottcsa_. 
of  the  seller's  business,  the  provisions  of  this  section  shall  not  apply. 

(3.)  There  is  an  acceptance  of  goods  within  the  meaning  of  this  section 
when  the  buyer,  either  before  or  after  delivery  of  the  goods,  expresses  by 
word  or  conduct  his  assent  to  becoming  the  owner  of  those  specific  goods. 

Subject-Matter  of  Contract 

Section  5.— [Existing  and  Future  Goods.]  (1.)  The  goods  which  form 
the  subject  of  a  contract  to  sell  may  be  either  existing  goods,  owned  or  pos- 
sessed by  the  seller,  or  goods  to  be  manufactured  or  acquired  by  the  seller 
after  the  making  of  the  contract  to  sell,  in  this  act  called  "future  goods." 

(2.)  There  may  be  a  contract  to  sell  goods,  the  acquisition  of  which  by 
the  seller  depends  upon  a  contingency  which  may  or  may  not  happen. 

(3.)  Where  the  parties  purport  to  effect  a  present  sale  of  future  goods,  the 
agreement  operates  as  a  contract  to  sell  the  goods. 

Section  6.— [Undivided  Shares.]  (1.)  There  may  be  a  contract  to  sell 
or  a  sale  of  an  undivided  share  of  goods.  If  the  parties  intend  to  effect  a 
present  sale,  the  buyer,  by  force  of  the  agreement,  becomes  an  owner  in 
common  with  the  owner  or  owners  of  the  remaining  shares. 

(2.)  In  the  case  of  fungible  goods,  there  may  be  a  sale  of  an  undivided 
share  of  a  specific  mass,  though  the  seller  purports  to  sell  and  the  buyer 
to  buy  a  definite  number,  weight  or  measure  of  the  goods  in  the  mass,  and 
though  the  number,  weight  or  measure  of  the  goods  in  the  mass,  is  undeter- 
mined. By  such  a  sale  the  buyer  becomes  owner  in  common  of  such  a  share 
or  the  mass  as  the  number,  weight  or  measure  bought  bears  to  the  number, 
weight  or  measure  of  the  mass.  If  the  mass  contains  less  than  the  number, 
weight  or  measure  bought,  the  buyer  becomes  the  owner  of  the  whole  mass 
and  the  seller  is  bound  to  make  good  the  deficiency  from  similar  goods  un- 
less a  contrary  intent  appears. 

Section  7.— [Destruction  of  Goods  Sold.]  (1.)  Where  the  parties  pur- 
port to  sell  specific  goods,  and  the  goods  without  the  knowledge  of  the  seller 
have  wholly  perished  at  the  time  when  the  agreement  is  made,  the  agree- 
ment is  void. 

(2.)  Where  the  parties  purport  to  sell  specific  goods,  and  the  goods  without 
the  knowledge  of  the  seller  have  perished  in  part  or  have  wholly  or  in  a 
material  part  so  deteriorated,  in  quality  as  to  be  substantially  changed  in 
character,  the  buyer  may  at  his  option  treat  the  sale — 

(a.)  As  avoided,  or 

(b.)  As  transferring  the  property  in  all  the  existing  goods  or  in  so  much 
thereof  as  have  not  deteriorated,  and  as  binding  the  buyer  to  pay  the  full 
agreed  price  if  the  sale  was  indivisible  or  to  pay  the  agreed  price  for  the 
goods  in  which  the  property  passes  if  the  sale  was  divisible. 

Section  8. —  [Destruction  of  Goods  Contracted  to  be  Sold.]  (1.) 
Where  there  is  a  contract  to  sell  specific  goods,  and  subsequently  but  before 
the  risk  passes  to  the  buyer,  without  any  fault  on  the  part  of  the  seller  or 
the  buyer,  the  goods  wholly  perish,  the  contract  is  thereby  avoided. 

(2.)  T^Tiere  there  is  a  contract  to  sell  specific  goods,  and  subsequently,  but 
before  the  risk  passes  to  the  buyer,  without  any  fault  of  the  seller  or  the 
buyer,  part  of  the  goods  perish  or  the  whole  or  a  material  part  of  the  goods 


§§   8-13)  SALES   ACT  755 

so  deteriorate  in  quality  as  to  be  substantially  changed  in  character,  the 
buyer  may  at  his  option  treat  the  contract — 

(a.)  As  avoided,  or 

(b.)  As  binding  the  seller  to  transfer  the  property  in  all  of  the  existing 
goods  or  in  so  much  thereof  as  have  not  deteriorated,  and  as  binding  the 
buyer  to  pay  the  full  agreed  price  if  the  contract  was  indivisible,  or  to  pay 
the  agreed  price  for  so  much  of  the  goods  as  the  seller,  by  the  buyer's  op- 
tion, is  bound  to  transfer  if  the  contract  was  divisible. 

The  Price 

Section  9.— [Definition  and  Ascertainment  of  Price.]  (1.)  The  price 
may  be  fixed  by  the  contract,  or  may  be  left  to  be  fixed  in  such  manner  as 
may  be  agreed,  or  it  may  be  determined  by  the  course  of  dealing  between 
the  parties. 

(2.)  The  price  may  be  made  payable  in  any  personal  property. 

(3.)  Where  transferring  or  promising  to  transfer  any  interest  in  real 
estate  constitutes  the  whole  or  part  of  the  consideration  for  transferring  or 
for  promising  to  transfer  the  property  in  goods,  this  act  shall  not  apply. 

(4.)  Where  the  price  is  not  determined  in  accordance  with  the  foregoing 
provisions  the  buyer  must  pay  a  reasonable  price.  What  is  a  reasonable 
price  is  a  question  of  fact  dependent  on  the  circumstances  of  each  particular 
case. 

Section  10.— [Sale  at  a  Valuation.]  (1.)  Where  there  is  a  contract  to 
sell  or  a  sale  of  goods  at  a  price  or  on  terms  to  be  fixed  by  a  third  person, 
and  such  third  person,  without  fault  of  the  seller  or  the  buyer,  cannot  or 
does  not  fix  the  price  or  terms,  the  contract  or  the  sale  is  thereby  avoided ,' 
but  if  the  goods  or  any  part  thereof  have  been  delivered  to  and  appropriated 
by  the  buyer  he  must  pay  a  reasonable  price  therefor. 

(2.)  Where  such  third  person  is  prevented  from  fixing  the  price  or  terms 
by  fault  of  the  seller  or  the  buyer,  the  party  not  in  fault  may  have  such 
remedies  against  the  party  in  fault  as  are  allowed  by  Parts  IV  and  V  of 
this  act. 

Conditions  and  Warranties 

Section  11.— [EfPect  of  Conditions.]  (1.)  AVhere  the  obligation  of  ei- 
ther party  to  a  contract  to  sell  or  a  sale  is  subject  to  any  condition  which  is 
not  performed,  such  party  may  refuse  to  proceed  with  the  contract  or  sale 
or  he  may  waive  performance  of  the  condition.  If  the  other  party  has  prom- 
ised that  the  condition  should  happen  or  be  performed,  .such  first-mentioned 
party  may  also  treat  the  non-performance  of  the  condition  as  a  breach  of 
warranty. 

(2.)  Where  the  property  in  the  goods  has  not  passed,  the  buyer  may  treat 
the  fulfillment  by  the  seller  of  his  obligation  to  furnish  goods  as  described 
and  as  warranted  expressly  or  by  implication  in  the  contract  to  sell  as  a 
condition  of  the  obligation  of  the  buyer  to  perform  his  promise  to  accept 
and  pay  for  the  goods. 

Section  12. —  [Definition  of  Express  Warranty.]  Any  affirmation  of 
fact  or  any  promise  by  the  seller  relating  to  the  goods  is  an  express  war- 
ranty if  the  natural  tendency  of  such  affirmation  or  promise  is  to  induce  the 
buyer  to  purchase  the  goods,  and  if  the  buyer  purchases  the  goods  relying 
thereon.  No  affirmation  of  the  value  of  the  goods,  nor  any  statement  pur- 
porting to  be  a  statement  of  the  seller's  opinion  only  shall  be  construed  as  a 
warranty. 

Section  13.— [Implied  Warranties  of  Title.]  In  a  contract  to  sell  or 
a  sale,  unless  a  contrary  intention  appears,  there  is — 

(1.)  An  implied  warranty  on  the  part  of  the  seller  that  in  case  of  a  sale 


756  APPENDIX  (Pt.  1 

he  has  a  right  to  sell  the  goods,  and  that  in  case  of  a  contract  to  sell  he 
will  have  a  right  to  sell  the  goods  at  the  time  when  the  property  is  to  pass. 

(2.)  An  implied  warranty  that  the  buyer  shall  have  and  enjoy  quiet  pos- 
session of  the  goods  as  against  any  lawful  claims  existing  at  the  time  of  the 
sale. 

(3.)  An  implied  warranty  that  the  goods  shall  be  free  at  the  time  of  the 
sale  from  any  charge  or  encumbrance  in  favor  of  any  third  person,  not  de- 
clared or  known  to  the  buyer  before  or  at  the  time  when  the  contract  or 
sale  is  made. 

(4.)  This  section  shall  not,  however,  be  held  to  render  liable  a  sheriff, 
auctioneer,  mortgagee,  or  other  person  professing  to  sell  by  virtue  of  au- 
thority in  fact  or  law  goods  in  which  a  third  person  has  a  legal  or  equitable 
interest. 

Section  14. —  [Implied  Warranty  in  Sale  by  Description.]  Where 
there  is  a  contract  to  sell  or  a  sale  of  goods  by  description,  there  is  an  im- 
plied warranty  that  the  goods  shall  correspond  with  the  desci-iption  and 
if  the  contract  or  sale  be  by  sample,  as  well  as  by  description,  it  is  not 
sulRcient  that  the  bulk  of  the  goods  corresponds  ^4th  the  sample  if  the  goods 
do  not  also  correspond  with  the  description. 

Section  15. —  [Implied  Warranties  of  Quality.]  Subject  to  the  pro- 
visions of  this  act  and  of  any  statute  in  that  behalf,  there  is  no  implied  war- 
ranty or  condition  as  to  the  quality  or  fitness  for  any  particular  purpose  of 
goods  supplied  under  a  contract  to  sell  or  a  sale,  except  as  follows: 

(1.)  "Where  the  buj-er,  expressly  or  by  implication,  makes  known  to  the 
seller  the  particular  purpose  for  which  the  goods  are  required,  and  it  ap- 
pears that  the  buyer  relies  on  the  seller's  sldll  or  judgment  (whether  he  be 
the  grower  or  manufacturer  or  not),  there  is  an  implied  warranty  that  the 
goods  shall  be  reasonably  fit  for  such  purpose. 

(2.)  Where  the  goods  are  bought  by  description  from  a  seller  who  deals  in 
goods  of  that  description  (whether  he  be  the  grower  or  manufacturer  or 
not),  there  is  an  implied  warranty  that  the  goods  shall  be  of  a  merchantable 
quality. 

.  (3.)  If  the  buyer  has  examined  the  goods,  there  is  no  implied  warranty  as 
regards  defects  which  such  examination  ought  to  have  revealed. 

(4.)  In  the  case  of  a  contract  to  sell  or  a  sale  of  a  specified  article  under 
its  patent  or  other  trade  name,  there  is  no  implied  warranty  as  to  its  fit- 
ness for  any  particular  purpose. 

(5.)  An  implied  warranty  or  condition  as  to  quality  or  fitness  for  a  par- 
ticular purpose  may  be  annexed  by  the  usage  of  trade. 

(6.)  An  express  warranty  or  condition  does  not  negative  a  warranty  or 
condition  implied  under  this  act  unless  inconsistent  therewith. 

Sale  1)1/  Sample 

Section  16. —  [Implied  Warranties  in  Sale  by  Sample.]  In  the  case 
of  a  contract  to  sell  or  a  sale  by  sample: 

(a.)  There  is  an  implied  warranty  that  the  bulk  shall  correspond  with  the 
sample  in  quality. 

(b.)  There  is  an  implied  warranty  that  the  buyer  shall  have  a  reasonable 
opportunity  of  comparing  the  bulk  with  the  sample,  except  so  far  as  other- 
wise provided  in  section  47  (3). 

(c.)  If  the  seller  is  a  dealer  in  goods  of  that  kind,  there  is  an  implied  war- 
ranty that  the  goods  shall  be  free  from  any  defect  rendering  them  unmer- 
chantable which  would  not  be  apparent  on  reasonable  examination  of  the 
sample. 


§§    17-19)  SALES   ACT  757 

PART  II 

Transfer  of  Property  and  Title 

Transfer  of  Property  as  Beticeen  Seller  and  Buyer 

Section    17. —  [No    Property    Passes    until    Goods    are    Ascertained.] 

Where  there  is  a  contract  to  sell  unascertained  goods  no  property  in  the 
goods  is  transferred  to  the  buyer  unless  and  until  the  goods  are  ascertained, 
but  property  in  an  undivided  share  of  ascertained  goods  may  be  transferred 
as  provided  in  section  6. 

Section  18. —  [Property  in  Specific  Goods  Passes  When  Parties  so 
Intend.]  (1.)  Where  there  is  a  contract  to  sell  specific  or  ascertained  goods, 
the  property  in  them  is  transferred  to  the  buyer  at  such  time  as  the  parties 
to  the  contract  intend  it  to  be  transferred. 

(2.)  For  the  purpose  of  ascertaining  the  intention  of  the  parties,  regard 
shall  be  had  to  the  terms  of  the  contract,  the  conduct  of  the  parties,  usages 
of  trade  and  the  circumstances  of  the  case. 

Section  19. —  [Rules  for  Ascertaining  Intention.]  Unless  a  different 
intention  appears,  the  following  are  rules  for  ascertaining  the  intention  of 
the  parties  as  to  the  time  at  which  the  property  in  the  goods  is  to  pass  to 
the  buyer: 

Rule  1.  Where  there  is  an  unconditional  contract  to  sell  specific  goods,  in 
a  deliverable  state,  the  property  in  the  goods  passes  to  the  buyer  when  the 
contract  is  made,  and  it  is  immaterial  whether  the  time  of  payment,  or  the 
time  of  delivery,  or  both,  be  postponed. 

Rule  2.  Where  there  is  a  contract  to  sell  specific  goods  and  the  seller  is 
bound  to  do  something  to  the  goods,  for  the  purpose  of  putting  them  into  a 
deliverable  state,  the  property  does  not  pass  luitil  such  thing  be  done. 

Rule  3.  (1.)  When  goods  are  delivered  to  the  buyer  "on  sale  or  return,"  or 
on  other  terms  indicating  an  intention  to  make  a  present  sale,  but  to  give 
the  buyer  an  option  to  return  the  goods  instead  of  paying  the  price,  the 
property  passes  to  the  buyer  on  delivery,  but  he  may  revest  the  property 
in  the  seller  by  returning  or  tendering  the  goods  within  the  time  fixed  in 
the  contract,  or,  if  no  time  has  been  fixed,  within  a  reasonable  time. 

(2.)  When  goods  are  delivered  to  the  buyer  on  approval  or  on  trial  or  on 
satisfaction,  or  other  similar  terms,  the  property  therein  paases  to  the 
buyei" — 

(a.)  When  he  signifies  his  approval  or  acceptance  to  the  seller  or  does  any 
other  act  adopting  the  transaction. 

(b.)  If  he  does  not  signify  his  approval  or  acceptance  to  the  seller  but 
retains  the  goods  without  giving  notice  of  rejection  then,  if  a  time  has  been 
fixed  for  the  return  of  the  goods,  on  the  expiration  of  such  time,  and  if  no 
time  has  been  fixed,  on  the  expiration  of  a  reasonable  time.  What  is  a  rea- 
sonable time  is  a  question  of  fact. 

Rule  4.  (1.)  Where  there  is  a  contract  to  sell  unascertained  or  future  goods 
by  description,  and  goods  of  that  description  and  in  a  deliverable  state  are 
unconditionally  appropriated  to  the  contract,  either  by  the  seller  with  the 
assent  of  the  buyer,  or  by  the  buyer  with  the  assent  of  the  seller,  the  prop- 
erty in  the  goods  thereupon  passes  to  the  buyer.  Such  assent  may  be  ex- 
pressed or  implied,  and  may  be  given  either  before  or  after  the  appropria- 
tion is  made. 

(2.)  Where,  in  pursuance  of  a  contract  to  sell,  the  seller  delivers  the  goods 
to  the  buyer,  or  to  a  carrier  or  other  bailee  (whether  named  by  the  buyer 
or  not)  for  the  purpose  of  transmission  to  or  holding  for  the  buyer,  he  is  pre- 
sumed to  have  unconditionally  appropriated  the  goods  to  the  contract,   ex- 


758  APPENDIX  (Pt.  2 

cept  in  the  cases  provided  for  in  the  next  rule  and  in  section  20.  This  pre- 
sumption is  applicable,  although  by  the  terms  of  the  contract,  the  buyer  is 
to  pay  the  price  before  receiving  delivery  of  the  goods,  and  the  goods  are 
marked  with  the  words  "collect  on  delivery"  or  their  equivalents. 

Rule  5.  If  the  contract  to  sell  requires  the  seller  to  deliver  the  goods  to 
the  buyer,  or  at  a  particular  place  or  to  pay  the  freight  or  cost  of  transpor- 
tation to  the  buyer,  or  to  a  particular  place,  the  property  does  not  pass  until 
the  goods,  have  been  delivered  to  the  buyer  or  reached  the  place  agreed 
upon. 

Section  20. —  [Reservation  of  Right  of  Possession  or  Property  xrhen 
Goods  are  Shipped.]  (1.)  Where  there  is  a  contract  to  sell  specific  goods, 
or  where  goods  are  subsequently  appropriated  to  the  contract,  the  seller  may, 
by  the  terms  of  the  contract  or  appropriation,  reserve  the  right  of  possession 
or  property  in  the  goods  until  certain  conditions  have  been  fulfilled.  The 
right  of  possession  or  property  may  be  thus  reserved  notwithstanding  the 
delivery  of  the  goods  to  the  buyer  or  to  a  carrier  or  other  bailee  for  the 
purpose  of  transmission  to  the  buyer, 

(2.)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the  goods  are  de- 
liverable to  the  seller  or  his  agent,  or  to  the  order  of  the  seller  or  of  his 
agent,  the  seller  thereby  reserves  the  property  in  the  goods.  But  if,  except 
for  the  form  of  the  bill  of  lading  the  property  would  have  passed  to  the 
buyer  on  shipment  of  the  goods,  the  seller's  property  in  the  goods  shall  be 
deemed  to  be  only  for  the  purpose  of  securing  performance  by  the  buyer 
of  his  obligations  under  the  contract. 

(3.)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the  goods  are 
deliverable  to  the  order  of  the  buyer  or  of  his  agent,  but  possession  of  the 
bill  of  lading  is  retained  by  the  seller  or  his  agent,  the  seller  thereby  re- 
serves a  right  to  the  possession  of  the  goods  as  against  the  buyer. 

(4.)  Where  the  seller  of  goods  draws  on  the  buyer  for  the  price  and  trans- 
mits the  bill  of  exchange  and  bill  of  lading  together  to  the  buyer  to  secure 
acceptance  or  payment  of  the  bill  of  exchange,  the  buyer  is  bound  to  return 
the  bill  of  lading  if  he  does  not  honor  the  bill  of  exchange,  and  if  he  wrong- 
fully retains  the  bill  of  lading  he  acquires  no  added  right  thereby.  If, 
however,  the  bill  of  lading  provides  that  the  goods  are  deliverable  to  the 
buyer  or  to  the  order  of  the  buyer,  or  is  indorsed  in  blank,-  or  to  the  buyer 
by  the  consignee  named  therein,  one  who  purchases  in  good  faith,  for  value, 
the  bill  of  lading,  or  goods  from  the  buyer  will  obtain  the  property  in  the 
goods,  although  the  bill  of  exchange  has  not  been  honored,  provided  that 
such  purchaser  has  received  delivery  of  the  bill  of  lading  indorsed  by  the 
consignee  named  therein,  or  of  the  goods,  without  notice  of  the  facts  making 
the  transfer  wrongful. 

Section  21.— [Sale  by  Auction.]  In  the  case  of  sale  by  auction— (1.) 
Where  goods  are  put  up  for  sale  by  auction  in  lots,  each  lot  is  the  subject 
of  a  separate  contract  of  sale. 

(2.)  A  sale  by  auction  is  complete  when  the  auctioneer  announces  its  com- 
pletion by  the  fall  of  the  hammer,  or  in  other  customary  manner.  Until 
such  announcement  is  made,  any  bidder  may  retract  his  bid ;  and  the  auc- 
tioneer may  withdraw  the  goods  from  sale  unless  the  auction  has  been  an- 
nounced to  be  without  reserve. 

(.3.)  A  right  to  bid  may  be  reserved  expressly  by  or  on  behalf  of  the  seller. 

(4.)  Where  notice  has  not  been  given  that  a  sale  by  auction  is  subject  to 
a  right  to  bid  on  behalf  of  the  seller,  it  shall  not  be  lawful  for  the  seller  to 
bid  himself  or  to  employ  or  induce  any  person  to  bid  at  such  sale  on  his 
behalf,  or  for  the  auctioneer  to  employ  or  induce  any  person  to  bid  at  such 
sale  on  behalf  of  the  seller  or  knowingly   to  take   any  bid   from   the  seller 


§§  22-28)  SALES  ACT  759 

or  any  person  employed  by  him.  Any  sale  contravening  tMs  rule  may  be 
treated  as  fraudulent  by  the  buyer. 

Section  22.— [Risk  of  Loss.]  Unless  otherwise  agreed,  the  goods  re- 
main at  the  seller's  risk  until  the  property  therein  is  transferred  to  the  buy- 
er, but  when  the  property  therein  is  transferred  to  the  buyer  the  goods  are 
at  the  buyer's  risli  whether  delivery  has  been  made  or  not,  except  that— 

(a.)  Where  delivery  of  the  goods  has  been  made  to  the  buyer,  or  to  a 
bailee  for  the  buyer,  in  pursuance  of  the  contract  and  the  property  in  the 
goods  has  been  retained  by  the  seller  merely  to  secure  performance  by  the 
buyer  of  his  obligation  under  the  contract,  the  goods  are  at  the  buyer's  risk 
from  the  time  of  such  delivery. 

(b.)  Where  delivery  has  been  delayed  through  the  fault  of  either  buyer  or 
seller  the  goods  are  at  the  risk  of  the  party  in  fault  as  regards  any  loss 
which  might  not  have  occurred  but  for  such  fault. 

Transfer  of  Title 

Section  23.— [Sale  by  a  Person  Not  tlie  Owner.]  (1.)  Subject  to  the 
provisions  of  this  act,  where  goods  are  sold  by  a  person  who  is  not  the 
owner  thereof,  and  who  does  not  sell  theju  under  the  authority  or  with  the 
consent  of  tlie  owner,  the  buyer  acquires  no  better  title  to  the  goods  than 
the  seller  had,  unless  the  owner  of  the  goods  is  by  his  conduct  precluded  from 
denying  the  seller's  authority  to  sell. 

(2.)  Nothing  in  this  act,  however,  shall  affect — 

(a.)  The  provisions  of  any  factor's  acts,  recording  acts,  or  any  enactment 
enabling  the  apparent  owner  of  goods  to  dispose  of  them  as  if  he  were  the 
true  owner  thereof. 

(b.)  The  validity  of  any  contract  to  sell  or  sale  under  any  special  common 
law  or  statutory  power  of  sale  or  under  the  order  of  a  court  of  competent 
.iurisdiction. 

Section  24. —  [Sale  by  one  Having  a  "Voidable  Title.]  Where  the 
seller  of  goods  has  a  voidable  title  thereto,  but  his  title  has  not  been  avoided 
at  the  time  of  the  sale,  the  buyer  acquires  a  good  title  to  the  goods,  pro- 
vided he  buys  them  in  good  faith,  for  value,  and  without  notice  of  the  seller's 
defect  of  title. 

Section  25. —  [Sale  by  Seller  in  Possession  of  Goods  Already  Sold.] 
Wlaere  a  person  having  sold  goods  continues  in  iwssession  of  the  goods,  or 
of  negotiable  documents  of  title  to  the  goods,  the  delivery  or  transfer  by  that 
person,  or  by  an  agent  acting  for  him,  of  the  goods  or  documents  of  title  un- 
der any  sale,  pledge,  or  other  disposition  thereof,  to  any  person  receiving 
and  paj-ing  value  for  the  same  in  good  faith  and  without  notice  of  the  pre- 
vious sale,  shall  have  the  same  effect  as  if  the  person  making  the  delivery 
or  transfer  were  expressly  authorized  by  the  owner  of  the  goods  to  make 
the  same. 

Section  26. — [Creditors'  Rights  against  Sold  Goods  in  Seller's  Pos- 
session.] Where  a  person  having  sold  goods  continues  in  possession  of  the 
goods,  or  of  negotiable  documents  of  title  to  the  goods,  and  such  retention 
of  possession  is  fraudulent  in  fact  or  is  deemed  fraudulent  under  any  rule  of 
law,  a  creditor  or  creditors  of  the  seller  may  treat  the  sale  as  void. 

Section  27. —  [Definition  of  Negotiable  Document  of  Title.]  A  doc- 
ument of  title  in  which  it  is  stated  that  the  goods  referred  to  therein  will 
be  delivered  to  the  bearer,  or  to  the  order  of  any  person  named  in  such  docu- 
ment is  a  negotiable  document  of  title. 

Section  28. —  [Negotiation  of  Negotiable  Documents  by  Delivery.] 
A  negotiable  document  of  title  may  be  negotiated  by  delivery: 

(a.)  Where  by  the  terms  of  the  document  the  carrier,   warehouseman   or 


760  APPENDIX  (Pt.  2 

other  bailee  issuing  the  same  undertakes  to  deliver  the  goods  to  the  bearer, 
or 

(b.)  Where  by  the  terms  of  the  document  the  carrier,  warehouseman  or 
other  bailee  issuing  the  same  undertakes  to  deliver  tlie  goods  to  the  order 
of  a  specified  person,  and  such  person  or  a  subsequent  indorsee  of  the  docu- 
ment has  indorsed  it  in  blank  or  to  bearer. 

WTiere  by  the  terms  of  a  negotiable  document  of  title  the  goods  are  de- 
liverable to  bearer  or  where  a  negotiable  document  of  title  has  been  in- 
dorsed in  blank  or  to  bearer,  any  holder  may  indorse  the  same  to  himself 
or  to  any  other  specified  person,  and  in  such  case  the  document  shall  there- 
after be  negotiated  only  by  the  indorsement  of  such  indorsee. 

Section  29. —  [Xegotiation  pf  Negotiable  Dociiiueiits  by  Indorse- 
ment.] A  negotiable  document  of  title  may  be  negotiated  by  the  indorse- 
ment of  the  person  to  whose  order  the  goods  are  by  the  terms  of  the  docu- 
ment deliverable.  Such  indorsement  may  be  in  blank,  to  bearer  or  to  a 
specified  person.  If  indorsed  to  a  specified  person,  it  may  be  again  nego- 
tiated by  the  indorsement  of  such  person  in  blank,  to  bearer  or  to  another 
specified  person.     Subsequent  negotiation  may  be  made  in  like  manner. 

Section  30. —  [Negotiable  Documents  of  Title  Marked  "Not  Negotia- 
ble."] If  a  document  of  title  which  contains  an  undertaking  by  a  carrier, 
warehouseman  or  other  bailee  to  deliver  the  goods  to  the  bearer,  to  a  speci- 
fied person  or  order,  or  to  the  order  of  a  specified  person,  or  which  contains 
words  of  like  import,  has  placed  upon  it  the  words  "not  negotiable,"  "non- 
negotiable"  or  the  like,  such  a  document  may  nevertheless  be  negotiated  by 
the  holder  and  is  a  negotiable  document  of  title  within  the  meaning  of  this 
act.  But  nothing  in  this  act  contained  shall  be  construed  as  limiting  or 
defining  the  effect  upon  the  obligations  of  the  carrier,  warehouseman,  or 
other  bailee  issuing  a  document  of  title  of  placing  thereon  the  words  "not 
negotiable,"  "non-negotiable,"  or  the  Like. 

Section  31. —  [Transfer  of  Non-Negotiable  Documents.]  A  document 
of  title  which  is  not  in  such  form  that  it  can  be  negotiated  by  delivery  may 
be  transferred  by  the  holder  by  delivery  to  a  purchaser  or  donee.  A  non-nego- 
tiable document  cannot  be  negotiated  and  the  indorsement  of  such  a  docu- 
ment gives  the  transferee  no  additional  right. 

Section  32. —  [Wlio  may  Negotiate  a  Document.]  A  negotiable  docu- 
ment of  title  may  be  negotiated 

(a.)  By  the  owner  thereof,  or 

(b.)  By  any  person  to  whom  the  possession  or  custody  of  the  document  has 
been  entrusted  by  the  oAvner,  if,  by  the  terms  of  the  document  the  bailee 
issuing  the  document  undertakes  to  deUver  the  goods  to  the  order  of  the  per- 
son to  whom  the  possession  or  custody  of  the  document  has  been  entrusted, 
or  if  at  the  time  of  such  entrusting  the  document  is  in  such  form  that  it  may 
be  negotiated  by  delivery. 

Section  33. —  [Rights  of  Person  to  Wliom  Document  has  been  Nego- 
tiated.] A  person  to  whom  a  negotiable  document  of  title  has  been  duly 
negotiated  acquires  thereby 

(a.)  Such  title  to  the  goods  as  the  person  negotiating  the  document  to  him 
had  or  had  ability  to  convey  to  a  purchaser  in  good  faith  for  value  and 
also  such  title  to  the  goods  as  the  person  to  whose  order  the  goods  were  to 
be  dehvered  by  the  terms  of  the  document  had  or  had  ability  to  convey  to  a 
purchaser  in  good  faith  for  value,  and 

(b.)  The  direct  obligation  of  the  bailee  issuing  the  document  to  hold  pos- 
session of  the  goods  for  him  according  to  the  terms  of  the  document  as 
fully  as  if  such  bailee  had  contracted  directly  with  him. 

Section  34.— [Rights  of  Person  to  Whom  Document  has  been  Trans- 
ferred.]    A  person  to  whom  a  document  of  title  has  been  transferred,  but 


§§    34-40)  SALES    ACT  761 

not  negotiated,  acquires  thereby,  as  against  the  transferor,  the  title  to  the 
goods,  subject  to  the  terms  of  any  agreement  with  the  transferor. 

If  the  document  is  non-negotiable,  such  person  also  acquires  the  right  to 
notify  the  bailee  who  issued  the  document  of  the  transfer  thereof,  and  there- 
by to  acquire  the  direct  obligation  of  such  bailee  to  hold  possession  of  the 
goods  for  him  according  to  the  terms  of  the  document. 

Prior  to  the  notification  of  such  bailee  by  the  transferor  or  transferee  of 
a  non-negotiable  document  of  title,  the  title  of  the  transferee  to  the  goods 
and  the  right  to  acquire  the  obligation  of  such  bailee  may  be  defeated  by 
the  levy  of  an  attachment  or  execution  upon  the  goods  by  a  creditor  of  the 
transferor,  or  by  a  notification  to  such  bailee  by  the  transferor  or  a  sub- 
sequent purchaser  from  the  transferor  of  a  suljscquent  sale  of  the  goods  by 
the  transferor. 

Section  35. —  [Transfer  of  Negotiable  Document  without  Indorse- 
ment.] Where  a  negotiable  document  of  title  is  transferred  for  value  by 
delivery,  and  the  indorsement  of  the  transferor  is  essential  for  negotiation, 
the  transferee  acquires  a  right  against  the  transferor  to  compel  him  to  in- 
dorse the  document  unless  a  contrary  intention  appears.  The  negotiation 
.shall  take  effect  as  of  the  time  when  the  indorsement  is  actually  made. 

Section  36. —  [Warranties  on  Sale  of  Document.]  A  person  who  for 
value  negotiates  or  transfers  a  document  of  title  by  indorsement  or  delivery, 
including  one  who  assigns  for  value  a  claim  secured  by  a  document  of  title 
unless  a  contrary  intention  appears,  warrants: 

(a.)  That  the  document  is  genuine. 

(b.)  That  he  has  a  legal  right  to  negotiate  or  transfer  it. 

(c.)  That  he  has  knowledge  of  no  fact  which  would  impair  the  validity  or 
worth  of  the  document,  and 

(d.)  That  he  has  a  right  to  transfer  the  title  to  the  goods  and  that  tlie 
goods  are  merchantable  or  fit  for  a  particular  purpose,  whenever  such  war- 
ranties would  have  been  implied  if  the  contract  of  the  parties  had  been  to 
transfer  without  a  document  of  title  the  goods  represented  thereby. 

Section  37. —  [Inclorser  Not  a  Guarantor.]  The  indorsement  of  a  doc- 
ument of  title  shall  not  make  the  indorser  liable  for  any  failure  on  the  part 
of  the  bailee  who  issued  the  document  or  previous  indorsers  thereof  to  ful- 
fill their  respective  obligations. 

Section  38. —  [W^hen  Negotiation  Not  Impaired  by  Fraud,  Mistake 
or  Duress.]  The  validity  of  the  negotiation  of  a  negotiable  document  of 
title  is  not  impaired  by  the  fact  that  the  negotiation  was  a  breach  of  duty 
on  the  part  of  the  person  making  the  negotiation,  or  by  the  fact  that  the 
owner  of  the  document  was  induced  by  fraud,  mistake  or  duress  to  entrust 
the  possession  or  custody  thereof  to  such  person,  if  the  person  to  whom  the 
document  was  negotiated  or  a  person  to  whom  the  document  was  subse- 
quently negotiated  paid  value  therefor,  without  notice  of  the  breach  of  duty, 
or  fraud,  mistake  or  duress. 

Section  39. —  [Attachment  or  Levy  upon  Goods  for  V/hich  a  Nego- 
tiable Document  has  been  Issued.]  If  goods  are  delivered  to  a  bailee 
by  the  owner  or  by  a  person  whose  act  in  conveying  the  title  to  them  to  a 
purchaser  in  good  faith  for  value  would  bind  the  owner  and  a  negotiable 
document  of  title  is  issued  for  them  they  cannot  thereafter,  while  in  the 
possession  of  such  bailee,  be  attached  by  garnishment  or  otherwise  or  be 
levied  upon  under  an  execution  unless  the  document  be  first  surrendered  to 
the  bailee  or  its  negotiation  enjoined.  The  bailee  shall  in  no  case  be  com- 
pelled to  deliver  up  the  actual  possession  of  the  goods  until  the  document  is 
surrendered  to  him  or  impounded  by  the  court. 

Section  40. —  [Creditors'  Remedies  to  Reach  Negotiable  Documents.] 
A  creditor  whose  debtor  is  the  owner  of  a  negotiable  document  of  title  shall 


762  APPENDIX  (Pt.  3 

be  entitled  to  such  aid  from  courts  of  appropriate  jurisdiction  by  injunc- 
tion and  otherwise  in  attaching  such  document  or  in  satisfying  the  claim  by 
means  thereof  as  is  allowed  at  law  or  in  equity  in  regard  to  property  which 
cannot  readily  be  attached  or  levied  upon  by  ordinary  legal  process. 

PART  III 

Performance  of  the  Contract 

Section   41.— [Seller  must  Deliver  and  Buyer  Accept   Goods.]      It  is 

the  duty  of  the  seller  to  deliver  the  goods,  and  of  the  buyer  to  accept  and 
pay  for  them,  in  accordance  with  the  terms  of  the  contract  to  sell  or  sale. 
Section    42. —  [Delivery    and    Payment    are    Concurrent    Conditions.] 

Unless  otherwise  agreed,  delivery  of  the  goods  and  payment  of  the  price 
are  concurrent  conditions ;  that  is  to  say,  the  seller  must  be  ready  and 
willing  to  give  possession  of  the  goods  to  the  buyer  in  exchange  for  the  price 
and  the  buyer  must  be  ready  and  willing  to  pay  the  price  in  exchange  for 
possession  of  the  goods. 

Section  43.— [Place,  Time  and  Manner  of  Delivery.]  (1.)  Whether  it 
is  for  the  buyer  to  tal^e  possession  of  the  goods  or  for  the  seller  to  send 
them  to  the  buyer  is  a  question  depending  in  each  case  on  the  contract,  ex- 
press or  implied,  between  the  parties.  Apart  from  any  such  contract,  or 
usage  of  trade  to  the  contrary,  the  place  of  delivery  is  the  seller's  place  of 
business  if  he  have  one,  and  if  not  his  residence ;  but  in  case  of  a  contract 
to  sell  or  a  sale  of  specilic  goods,  which  to  the  knowledge  of  the  parties  when 
the  contract  or  the  sale  was  made  were  in  some  other  places,  then  that 
place  is  the  place  of  delivery. 

(2.)  \Yhere  by  a  contract  to  sell  or  a  sale  the  seller  is  bound  to  send  the 
goods  to  the  buyer,  but  no  time  for  sending  them  is  fixed,  the  seller  is  bound 
to  send  them  within  a  reasonable  time. 

(3.)  Where  the  goods  at  the  time  of  sale  are  in  the  possession  of  a  third 

person,   the   seller  has  not  fulfilled'  his  obligation  to   deliver   to   the   buyer 

unless  and  until  such  third  person  acknowledges  to  the  buyer  that  he  holds 

the  goods  on  the  buyer's  behalf;    but  as  against  all  others  than  the  seller 

]  the  buyer  shall  be  regarded  as  having  received  delivery  from  the  time  when 

]  such  third  person  first  has  notice  of  the  sale.     Nothing  in  this  section,  how- 

j?  ever,  s>;all  affect  the  operation  of  the  issue  or  transfer  of  any  document  of 

!  title  to  goods. 

(4.)  Demand  or  tender  of  delivery  may  be  treated  as  ineffectual  unless 
made  at  a  reasonable  hour.     What  is  a  reasonable  hour  is  a  question  of  fact. 

(5.)  Unless  otherwise  agreed,  the  expenses  of  and  incidental  to  putting  the 
goods  into  a  deliverable  state  must  be  borne  by  the  seller. 

Section  44.— [Delivery  of  "Wrong  Quantity.]  (1.)  Where  the  seller 
delivers  to  the  buyer  a  quantity  of  goods  less  than  he  contracted  to  sell, 
the  buyer  may  reject  them,  but  if  the  buyer  accepts  or  retains  the  goods 
so  delivered,  knowing  that  the  seller  is  not  going  to  perform  the  contract  in 
full  the  buyer  shall  not  be  liable  for  more  than  the  fair  value  to  him  of 
the  goods  so  received. 

(2.)  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods  larger  than 
he  contracted  to  sell,  the  buyer  may  accept  the  goods  included  in  the  con- 
tract and  reject  the  rest,  or  he  may  reject  the  whole.  If  the  buyer  accepts 
the  whole  of  the  goods  so  delivered  he  must  pay  for  them  at  the  contract  rate. 

(3.)  Where  the  seller  delivers  to  the  buyer  the  goods  he  contracted  to  sell 
mixed  with  goods  of  a  different  description  not  included  in  the  contract,  the 
buyer  may  accept  the  goods  which  are  in  accordance  with  the  contract  and 
reject  the  rest,  or  he  may  reject  the  whole. 


I 


§§  44-^9)  SALES   ACT  703 

(4.)  The  provisions  of  this  section  are  subject  to  any  usage  of  trade,  special 
agreement,  or  course  of  dealing  between  the  parties. 

Section  45.— [Delivery  in  Installments.]  (1.)  Unless  otherwise  agreed, 
the  buyer  of  goods  is  not  bound  to  accept  delivery  thereof  by  installments. 

(2.)  Where  there  is  a  contract  to  sell  goods  to  be  delivered  by  stated  install- 
ments, which  are  to  be  separately  paid  for,  and  the  seller  makes  defective 
deliveries  in  respect  of  one  or  more  installments,  or  the  buyer  neglects  or 
refuses  to  take  delivery  of  or  pay  for  one  or  more  installments,  it  depends  in 
each  case  on  the  terms  of  the  contract  and  the  circumstances  of  the  case, 
whether  the  breach  of  contract  is  so  material  as  to  justify  the  injured  party 
in  refusing  to  proceed  further  and  suing  for  damages  for  breach  of  the  en- 
tire contract,  or  whether  the  breach  is  severable,  giving  rise  to  a  claim  for 
compensation,  but  not  to  a  right  to  treat  the  whole  contract  as  broken. 

Section  46. —  [Delivery  to  a  Carrier  on  Behalf  of  the  Buyer.]  (1.) 
Where,  in  pursuance  of  a  contract  to  sell  or  a  sale,  the  seller  is  authorized 
or  required  to  send  the  goods  to  the  buyer,  delivery  of  the  goods  to  a  c.ir- 
rier,  whether  named  by  the  buyer  or  not,  for  the  purpose  of  transmission 
to  the  buyer  is  deemed  to  be  a  delivery  of  the  goods  to  the  buyer,  except  in 
the  cases  provided  for  in  section  19,  rule  5,  or  unless  a  contrary  intent  ap- 
pears. 

(2.)  Unless  otherwise  authorized  by  the  buyer,  the  seller  must  make  such 
contract  with  the  carrier  on  behalf  of  the  buyer  as  may  be  reasonable,  hav- 
ing regard  to  the  nature  of  the  goods  and  the  other  circumstances  of  the 
case.  If  the  seller  omit  so  to  do,  and  the  goods  arc  lost  or  damaged  in 
course  of  transit,  the  buyer  may  decline  to  treat  the  delivery  to  the  carrier 
as  a  delivery  to  himself,  or  may  hold  the  seller  responsible  in  damages. 

(3.)  Unless  otherwise  agreed,  where  goods  are  sent  by  the  seller  to  the 
buyer  under  circumstances  in  which  the  seller  knows  or  ought  to  know  that 
it  is  usual  to  insure,  the  seller  must  give  such  notice  to  the  buyer  as  may 
enable  him  to  insure  them  during  their  transit,  and,  if  the  seller  fails  to  do 
so,  the  goods  shall  be  deemed  to  be  at  his  risk  during  such  transit. 

Section  47.— [Right  to  Examine  the  Goods.]  (1.)  Wliere  goods  are 
delivered  to  the  buyer,  which  he  has  not  previously  examined,  he  is  not 
deemed  to  have  accepted  them  unless  and  until  he  has  had  a  reasonable  op- 
portunity of  examining  them  for  the  purpose  of  ascertaining  whether  they 
are  in  conformity  with  the  contract. 

(2.)  Unless  otherwise  agreed,  when  the  seller  tenders  delivery  of  goods  to 
the  buyer,  he  is  bound,  on  request,  to  afford  the  buyer  a  reasonable  op- 
portunity of  examining  the  goods  for  the  purpose  of  ascertaining  whether 
they  are  in  conformity  with  the  contract. 

(3.)  Where  goods  are  delivered  to  a  carrier  by  the  seller,  in  accordance 
witli  an  order  from  or  agreement  with  the  buyer,  upon  the  terms  that  the 
goods  shall  not  be  delivered  by  the  carrier  to  the  buyer  until  he  has  paid  the 
price,  whether  such  terms  are  indicated  by  marking  the  goods  with  the  words 
"collect  on  delivery,"  or  otherwise,  the  buyer  is  not  entitled  to  examine  the 
goods  before  payment  of  the  price  in  the  absence  of  agreement  permitting 
such  examination. 

Section  48. —  ['What  Constitutes  Acceptance.]  The  buyer  is  deemed 
to  have  accepted  the  goods  when  he  intimates  to  the  seller  that  he  has  ac- 
cepted them,  or  when  the  goods  have  been  delivered  to  him,  and  he  does  any 
act  in  relation  to  them  which  is  inconsistent  with  the  ownership  of  the 
seller,  or  when,  after  the  lapse  of  a  reasonable  time  he  retains  the  goods 
without  intimating  to  the  seller  that  he  has  rejected  them. 

Section  49.— [Acceptance  does  Not  Bar  Action  for  Damages.]  In 
the  absence  of  express  or  implied  agreement  of  the  parlies,  acceptance  of 
the  goods  by  the  buyer  shall  not  discharge  the  seller  from  liability  in  dam- 


764  APPENDIX  (Pt.  3 

ages  or  other  legal  remedy  for  breach  of  any  promise  or  warranty  in  the 
contract  to  sell  or  the  sale.  But,  if,  after  acceptance  of  the  goods,  the  buyer 
fail  to  give  notice  to  the  seller  of  the  breach  of  any  promise  or  warranty 
within  a  reasonable  time  after  the  buyer  knows,  or  ought  to  know  of  such 
breach,  the  seller  shall  not  be  liable  therefor. 

Section  50. —  [Buyer  is  Not  Bound  to  Return  Goods  Wrongly  De- 
livered.] Unless  otherwise  agreed,  where  goods  are  delivered  to  the  buyer, 
and  he  refuses  to  accept  them,  having  the  right  so  to  do,  he  is  not  bound  to 
return  them  to  the  seller,  but  it  is  sufficient  if  he  notifies  the  seller  that  he 
refuses  to  accept  them. 

Section  51. —  [Buyer's  Liability  for  Failing  to  Accept  Delivery.] 
When  the  seller  is  ready  and  willing  to  deliver  the  goods,  and  requests  the 
buyer  to  take  delivery,  and  the  buyer  does  not  within  a  reasonable  time  after 
such  request  take  delivery  of  the  goods,  he  is  liable  to  the  seller  for  any  loss 
occasioned  by  his  neglect  or  refusal  to  take  delivery,  and  also  for  a  reason- 
able charge  for  the  care  and  custody  of  the  goods.  If  the  neglect  or  refusal 
of  the  buyer  to  take  delivery  amounts  to  a  repudiation  or  breach  of  the  en- 
tire contract,  the  seller  shall  have  the  rights  against  the  goods  and  on  the 
contract  hereinafter  provided  in  favor  of  the  seller  when  the  buyer  is  in  de- 
fault 

PART  IV 
Rights  of  Unpaid  Seller  against  the  Goods 

Section  52.— [Definition  of  Unpaid  Seller.]  The  seller  of  goods  is 
deemed  to  be  an  unpaid  seller  within  the  meaning  of  this  act— 

(a.)  When  the  whole  of  the  price  has  not  been  paid  or  tendered ; 

(b.)  When  a  bill  of  exchange  or  other  negotiable  instrument  has  been  re- 
ceived as  conditional  payment,  and  the  condition  on  which  it  was  received 
has  been  broken  by  reason  of  the  dishonor  of  the  instrument,  the  insolvency 
of  the  buyer,  or  otherwise. 

(2.)  In  this  part  of. this  act  the  term  "seller"  includes  an  agent  of  the 
seller  to  whom  the  bill  of  lading  has  been  indorsed,  or  a  consignor  or  agent 
who  has  himself  paid,  or  is  directly  responsible  for,  the  price,  or  any  other 
person  who  is  in  the  position  of  a  seller. 

Section  53. —  [Remedies  of  an  Unpaid  Seller.]  (1.)  Subject  to  the  pro- 
visions of  this  act,  notwithstanding  that  the  property  in  the  goods  may  have 
passed  to  the  buyer,  the  unpaid  seller  of  goods,  as  such,  has — 

(a.)  A  lien  on  the  goods  or  right  to  retain  them  for  the  price  while  he  is 
in  possession  of  them ; 

(b.)  In  case  of  the  insolvency  of  the  buyer,  a  right  of  stopping  the  goods  in 
transitu  after  he  has  parted  with  the  possession  of  them ; 

(c.)  A  right  of  resale  as  limited  by  this  act ; 

(d.)  A  right  to  rescind  the  sale  as  limited  by  this  act. 

(2.)  Where  the  property  in  goods  has  not  passed  to  the  buyer,  the  unpaid 
seller  has,  in  addition  to  his  other  remedies,  a  right  of  withholding  delivery 
similar  to  and  coextensive  with  his  rights  of  lien  and  stoppage  "in  transitu" 
where  the  property  has  passed  to  the  buyer. 

Vni)aid  Seller's  Lien 

Section  54. —  [When  Right  of  Lien  may  be  Exercised.]  (1.)  Subject 
to  the  provisions  of  this  act,  the  unpaid  seller  of  goods  who  is  in  possession 
of  them  is  entitled  to  retain  possession  of  them  until  payment  or  tender  of 
the  price  in  the  following  cases,  namely: 

(a.)  Where  the  goods  have  been  sold  without  any  stipulation  as  to  credit ; 


§§  54-59)  SALES  ACT  765 

(b.)  Where  the  goods  have  been  sold  on  credit,  but  the  term  of  credit  has 
expired. 

(c.)  Where  the  buyer  becomes  insolvent. 

(2.)  The  seller  may  exercise  his  right  of  lien  notwithstanding  that  he  is  in 
possession  of  the  goods  as  agent  or  bailee  for  the  buyer. 

Section  55. —  [Lien  after  Part  Delivery.]  Where  an  unpaid  seller  has 
made  part  delivery  of  the  goods,  he  may  exercise  his  right  of  lien  on  the 
remainder,  unless  such  part  delivery  has  been  made  under  such  circum- 
stances as  to  show  an  intent  to  waive  the  lien  or  right  of  retention. 

Section  56. —  [WTien  Lien  is  Lost.]  (1.)  The  unpaid  seller  of  goods 
loses  his  lien  thereon — 

(a.)  When  he  delivers  the  goods  to  a  carrier  or  other  bailee  for  the  purpose 
of  transmission  to  the  buyer  without  reserving  the  property  in  the  goods 
or  the  right  to  the  possession  thereof ; 

(b.)  When  the  buyer  or  his  agent  lawfully  obtains  possession  of  the  goods ; 

(c.)  By  waiver  thereof. 

(2.)  The  unpaid  seller  of  goods,  having  a  lien  thereon,  does  not  lose  his 
lien  by  reason  only  that  he  has  obtained  judgment  or  decree  for  the  price 
of  the  goods. 

Stoppage  in  Transitu 

Section  57.— [Seller  may  Stop  Goods  on  Buyer's  Insolvency.]  Sub- 
ject to  the  provisions  of  this  act,  when  the  buyer  of  goods  is  or  becomes  in- 
solvent, the  uripaid  seller  who  has  parted  with  the  possession  of  the  goods 
has  the  right  of  stopping  them  in  transitu ;  that  is  to  say,  he  may  resume 
possession  of  the  goods  at  any  time  while  they  are  in  transit,  and  he  will 
then  become  entitled  to  the  same  rights  in  regard  to  the  goods  as  he  would 
have  had  if  he  had  never  parted  with  the  possession. 

Section  58. —  ["When  Goods  are  in  Transit.]  (1.)  Goods  are  in  transit 
within  the  meaning  of  section  57 — 

(a.)  From  the  time  when  they  are  delivered  to  a  carrier  by  land  or  water, 
or  other  bailee  for  the  purpose  of  transmission  to  the  buyer,  until  the  buyer, 
or  his  agent,  in  that  behalf,  takes  delivery  of  th^m  from  such  carrier  or  other 
bailee ; 

(b.)  If  the  goods  are  rejected  by  the  buyer,  and  the  carrier  or  other  bailee 
continues  in  possession  of  them,  even  if  the  seller  has  refused  to  receive  them 
back. 

(2.)  Goods  are  no  longer  in  transit  within  the  meaning  of  section  57 — 

(a.)  If  the  buyer,  or  his  agent  in  that  behalf,  obtains  delivery  of  the  goods 
before  their  arrival  at  the  appointed  destination ; 

(b.)  If,  after  the  arrival  of  the  goods  at  the  appointed  destination,  the 
carrier  or  other  bailee  acknowledges  to  the  buyer  or  his  agent  that  he  holds 
the  goods  on  his  behalf  and  continues  in  possession  of  them  as  bailee  t'o-r  the 
buyer  or  his  agent ;  and  it  is  immaterial  that  a  further  destination  for  the 
goods  may  have  been  indicated  by  the  buyer ; 

(c.)  If  the  carrier  or  other  bailee  wrongfully  refuses  to  deliver  the  goods 
to  the  buyer  of  his  agent  in  that  behalf. 

(3.)  If  goods  are  delivered  to  a  ship  chartered  by  the  buyer,  it  is  a  ques- 
tion depending  on  the  circumstances  of  the  particular  case,  whether  they 
are  in  the  possession  of  the  master  as  a  carrier  or  as  agent  of  the  buyer. 

(4.)  If  part  delivery  of  the  goods  has  been  made  to  the  buyer,  or  his  agent 
in  that  behalf,  the  remainder  of  the  goods  may  be  stopped  in  transitu,  un- 
less such  part  delivery  has  been  made  under  such  circumstances  as  to  show 
an  agreement  with  the  buyer  to  give  up  possession  of  the  whole  of  the  goods. 

Section  59.— ["Ways  of  Exercising  the  Right  to  Stop.]  (1.)  The  un- 
paid seller  may  exercise  his  right  of  stoppage  in  transitu  either  by  obtaining 


766  APPENDIX  (Pt.  4 

actual  possession  of  the  goods  or  by  giving  notice  of  Ms  claim  to  the  carrier 
or  other  bailee  in  whose  possession  the  goods  are.  Such  notice  may  be  given 
either  to  the  person  in  actual  possession  of  the  goods  or  to  his  principal. 
In  the  latter  case  the  notice,  to  be  effectual,  must  be  given  at  such  time  and 
under  such  circumstances  that  the  principal,  by  the  exercise  of  reasonable 
diligence,  may  prevent  a  delivery  to  the  buyer. 

(2.)  When  notice  of  stoppage  in  transitu  is  given  by  the  seller  to  the  car- 
rier, or  other  bailee  in  possession  of  the  goods,  he  must  redeliver  the  goods 
to,  or  according  to  the  directions  of,  the  seller.  The  expenses  of  such  re- 
delivery must  be  borne  by  the  seller.  If,  however,  a  negotiable  document  of 
title  representing  the  goods  has  been  issued  by  the  carrier  or  other  bailee, 
he  shall  not  be  obliged  to  deliver  or  justified  in  delivering  the  goods  to  the 
seller  unless  such  document  is  first  surrendered  for  cancellation. 

Resale  iij  the  Seller 

Section  60. —  [When  and  How  Resale  may  be  Made.]  (1.)  Where  the 
goods  are  of  a  perishable  nature,  or  where  the  seller  expressly  reserves  the 
right  of  resale  in  case  the  buyer  should  make  default,  or  where  the  buyer 
has  been  in  default  in  the  payment  of  the  price  an  unreasonable  time,  an 
unpaid  seller  having  a  right  of  lien  or  having  stopped  the  goods  in  transitu 
may  resell  the  goods.  He  shall  not  thereafter  be  liable  to  the  original  buyer 
upon  the  contract  to  sell  or  the  sale  or  for  any  profit  made  by  such  resale, 
but  may  recover  from  the  buyer  damages  for  any  loss  occasioned  by  the 
breach  of  the  contract  or  the  sale. 

(2.)  Where  a  resale  is  made,  as  authorized  in  this  section,  the  buyer  ac- 
quires a  good  title  as  against  the  original  buyer. 

(3.)  It  is  not  essential  to  the  validity  of  a  resale  that  notice  of  an  inten- 
tion to  resell  the  goods  be  given  by  the  seller  to  the  original  buyer.  But 
where  the  right  to  resell  is  not  based  on  the  perishable  nature  of  the  goods 
or  upon  an  express  provision  of  the  contract  or  the  sale,  the  giving  or  failure 
to  give  such  notice  shall  be  relevant  in  any  issue  involving  the  question 
whether  the  buyer  had  been  in  default  an  unreasonable  time  before  the 
resale  was  made. 

(4.)  It  is  not  essential  to  the  validity  of  a  resale  that  notice  of  the  time 
and  place  of  such  resale  should  be  given  by  the  seller  to  the  original  buyer. 

(5.)  The  seller  is  bound  to  exercise  reasonable  care  and  judgment  in  making 
a  resale,  and  subject  to  this  reqiUremeut  may  make  a  resale  either  by  pub- 
lic or  private  sale. 

Rescission  hy  the  Seller 

Section    61. —  ["When    and    How   the    Seller    may   Rescind    the    Sale.l 

(1.)  An  unpaid  seller  having  a  right  of  lien  or  having  stopped  the  goods  in 
transitu,  may  rescind  the  transfer  of  title  and  resume  the  property  in  the 
goods,  where  he  expressly  reserved  the  right  to  do  so  in  case  the  buyer 
should  make  default,  or  where  the  buyer  has  been  in  default  of  the  payment 
of  the  price  an  unreasonable  time.  The  seller  shall  not  thereafter  be  Uable 
to  the  buyer  upon  the  contract  to  sell  or  the  sale,  but  may  recover  from 
the  buyer  damages  for  any  loss  occasioned  by  the  breach  of  the  contract  or 
the  sale. 

(2.)  The  transfer  of  title  shall  not  be  held  to  have  been  rescinded  by  an 
unpaid  seller  until  he  has  manifested  by  notice  to  the  buyer  or  by  some 
other  overt  act  an  intention  to  rescind.  It  is  not  necessary  that  such  overt 
act  should  be  communicated  to  the  buyer,  but  the  giving  or  failure  to  give 
notice  to  the  buyer  of  the  intention  to  rescind  shall  be  relevant  in  any  issue 
involving  the  question  whether  the  buyer  had  been  in  default  an  unreason- 
able time  before  the  right  of  rescission  was  asserted. 


§§  62-64)  SALES  ACT  767 

Section  62. —  [Effect  of  Sale  of  Goods  Subject  to  Iden  or  Stoppage 
in  Transitn.]  Subject  to  the  provisions  of  this  act,  the  unpaid  seller's  right 
of  lien  or  stoppage  in  transitu  is  not  affected  by  any  sale,  or  other  disposi- 
tion of  the  goods  which  the  buyer  may  have  made,  unless  the  seller  has 
assented  thereto. 

If,  however,  a  negotiable  document  of  title  has  been  issued  for  goods,  no 
seller's  lien  or  right  of  stoppage  in  transitu   shall  defeat  the  right  of  any 
purchaser  for  value  in  good  faith  to  whom  such  document  has  been  nego-|  / 
tiated,   whether  such  negotiation  be  prior  or  subsequent  to  the  notificationj  f 
to  the  carrier  or  other  bailee  who  issued  such  document,  of  the  seller's  claim  ' 
to  a  lien  or  right  of  stoppage  in  transitu. 


PART  V 

Actions  foe  Bkeach  of  the  Contract 

Remedies  of  the  Seller 

Section  63. — fAction  for  tlie  Price.]  (1.)  Where,  under  a  contract  to 
sell  or  a  sale,  the  property  in  the  goods  has  passed  to  the  buyer,  and  the 
buyer  wrongfully  neglects  or  refuses  to  pay  for  the  goods  according  to  the 
terms  of  the  contract  or  the  sale,  the  seller  may  maintain  an  action  against 
him  for  the  price  of  the  goods. 

(2.)  Where,  under  a  contract  to  sell  or  a  sale,  the  price  is  payable  on  a 
day  certain,  irrespective  of  delivery  or  of  transfer  of  title,  and  the  buyei 
wrongfully  neglects  or  refuses  to  pay  such  price,  the  seller  may  maintain  an 
action  for  the  price,  although  the  property  in  the  goods  has  not  passed, 
and  the  goods  have  not  been  appropriated  to  the  contract.  But  it  shall  be 
a  defense  to  such  an  action  that  the  seller  at  any  time  before  judgment  in 
such  action  has  manifested  an  inability  to  perform  the  contract  or  the  sale 
on  his  part  or  an  intention  not  to  perform  it. 

(3.)  Although  the  property  in  the  goods  has  not  passed,  if  they  cannot 
readily  be  resold  for  a  reasonable  price,  and  if  the  provisions  of  section  64 
(4)  are  not  applicable,  the  seller  may  offer  to  deliver  the  goods  to  the  buyer, 
and,  if  the  buyer  refuses  to  receive  them,  may  notify  the  buyer  that  the 
goods  are  thereafter  held  by  the  seller  as  bailee  for  the  buyer.  Thereafter 
the  seller  may  treat  the  goods  as  the  buyer's  and  may  maintain  an  action 
for  the  price. 

Section  64. —  [Action  for  Damages  for  Non-Acceptance  of  tlie 
Goods.]  (1.)  WTiere  the  buyer  wrongfully  neglects  or  refuses  to  accept  and 
pay  for  the  goods,  the  seller  may  maintain  an  action  against  him  for  dam- 
ages for  non-acceptance. 

(2.)  The  measure  of  damages  is  the  estimated  loss  directly  and  naturally 
resulting  in  the  ordinary  course  of  events,  from  the  buyer's  breach  of  con- 
tract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in  question,  the 
measure  of  damages  is,  in  the  absence  of  special  circumstances,  showing 
proximate  damage  of  a  greater  amount,  the  difference  between  the  contract 
price  and  the  market  or  current  price  at  the  time  or  times  when  the  goods 
ought  to  have  been  accepted,  or,  if  no  time  was  fixed  for  acceptance,  then 
at  the  time  of  the  refusal  to  accept. 

(4.)  If,  while  labor  or  expense  of  material  amount  are  necessary  on  the 
part  of  the  seller  to  enable  him  to  fulfill  his  obligations  under  the  contract 
to  sell  or  the  sale,  the  buyer  repudiates  the  contract  or  the  sale,  or  notifies 
the  seller  to  proceed  no  further  therewith,  the  buyer  shall  be  liable  to  the 
seller  for  no  greater  damages  than  the  seller  would  have  suffered  if  he  did 


768  APPENDIX  (Pt.  5 

nothing  towards  carrying  out  the  contract  or  the  sale  after  receiving  notice 
of  the  buyer's  repudiation  or  countermand.  The  profit  tlie  seller  would  have 
made  if  the  contract  or  the  sale  had  been  fully  performed  shall  be  con- 
sidered in  estimating  such  damages. 

Section  65. —  [When  Seller  may  Rescind  Contract  or  Sale.]  Where 
the  goods  have  not  been  delivered  to  the  buyer,  and  the  buyer  has  repu- 
diated the  contract  to  sell  or  sale,  or  has  manifested  his  inability  to  per- 
form his  obligations  thereunder,  or  has  committed  a  material  breach  thereof, 
the  seller  may  totally  rescind  the  contract  or  the  sale  by  giving  notice  of  his 
election  so  to  do  to  the  buyer. 

Remedies  of  the  Buyer 

Section  66. —  [Action  for  Converting  or  Detaining  Goods. 1  Where 
the  property  in  the  goods  has  passed  to  the  buyer  and  the  seller  wrongfully 
neglects  or  refuses  to  deliver  the  goods,  the  buyer  may  maintain  any  action 
allowed  by  law  to  the  owner  of  goods  of  similar  kind  when  wrongfully  con- 
verted or  withheld. 

Section  67.— [Action  for  Failing  to  Deliver  Goods.]  (1.)  Where  the 
property  in  the  goods  has  not  passed  to  the  buyer,  and  the  seller  wrongfully 
neglects  or  refuses  to  deliver  the  goods,  the  buyer  may  maintain  an  action 
against  the  seller  for  damages  for  non-delivery. 

(2.)  The  measure  of  damages  is  the  loss  directly  and  naturally  resulting 
in  the  ordinary  course  of  events,  from  the  seller's  breach  of  contract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in  question,  the 
measure  of  damages,  in  the  absence  of  special  circumstances  showing  proxi- 
mate damages  of  a  greater  amount,  is  the  difference  between  the  contract 
price  and  the  markets  or  current  price  of  the  goods  at  the  time  or  times  when 
they  ought  to  have  been  delivered,  or,  if  no  time  was  fixed,  then  at  the  time 
of  the  refusal  to  deliver. 

Section  68. —  [Specific  Performance.]  Where  the  seller  has  broken  a 
contract  to  deliver  specific  or  ascertained  goods,  a  court  having  the  powers 
of  a  court  of  equity  may,  if  it  thinks  fit.  on  the  application  of  the  buyer,  by 
its  judgment  or  decree  direct  that  the  contract  shall  be  performed  specifically, 
without  giving  the  seller  the  option  of  retaining  the  goods  on  payment  of 
damages.  The  judgment  or  decree  may  be  unconditional  or  upon  such  terms 
and  conditions  as  to  damages,  payment  of  the  price  and  otherwise,  as  to  the 
court  may  seem  just. 

Section  69. —  [Remedies  for  Breacli  of  'Warranty.]  (1.)  Where  there 
is  a  breach  of  warranty  by  the  seller,  the  buyer  may,  at  his  election — 

(a.)  Accept  or  keep  the  goods  and  set  up  against  the  seller,  the  breach  of 
warranty  by  way  of  recoupment  in  diminution  or  extinction  of  the  price ; 

(b.)  Accept  or  keep  the  goods  and  maintain  an  action  against  the  seller  for 
damages  for  the  breach  of  warranty ; 

(c.)  Refuse  to  accept  the  goods,  if  the  property  therein  has  not  passed,  and 
maintain  an  action  against  the  seller  for  damages  for  the  breach  of  war- 
ranty ; 

(d.)  Rescind  the  contract  to  sell  or  the  sale  and  refuse  to  receive  the  goods, 
or  if  the  goods  have  already  been  received,  return  them  or  offer  to  return 
them  to  the  seller  and  recover  the  price  or  any  part  thereof  which  has  been 
paid. 

(2.)  When  the  buyer  has  claimed  and  been  granted  a  remedy  in  any  one  of 
these  ways,  no  other  remedy  can  thereafter  be  granted. 

(3.)  Where  the  goods  have  been  delivered  to  the  buyer,  he  cannot  rescind 
the  sale  if  he  knew^  of  the  breach  of  warranty  when  he  accepted  the  goods, 
or  if  he  fails  to  notify  the  seller  within  a  i-easonable  time  of  the  election  to 


§§69-75)  SALES  ACT  709 

reseiud,  or  if  he  falls  to  return  or  to  offer  to  return  the  goods  to  the  seller 
in  substantially  as  good  condition  as  they  were  at  the  time  the  property  was 
transferred  to  the  buyer.  But  if  deterioration  or  injury  of  the  goods  is  due 
to  the  breach  of  warranty,  such  deterioration  or  injury  shall  not  prevent 
the  buyer  from  returning  or  offering  to  return  the  goods  to  the  seller  and 
rescinding  the  sale. 

(4.)  Where  the  buyer  is  entitled  to  rescind  the  sale  and  elects  to  do  so,  the 
buyer  shall  cease  to  be  liable  for  the  price  upon  returning  or  offering  to  re- 
turn the  goods.  If  the  price  or  any  part  thereof  has  already  been  paid,  the 
seller  shall  be  liable  to  repay  so  much  thereof  as  has  been  paid  concur- 
rently with  the  return  of  the  goods,  or  immediately  after  an  offer  to  return 
the  goods  in  exchange  for  repayment  of  the  price. 

(5.)  Where  the  buyer  is  entitled  to  rescind  the  sale  and  elects  to  do  so, 
if  the  seller  refuses  to  accept  an  offer  of  the  buyer  to  return  the  goods,  the 
buyer  shall  thereafter  be  deemed  to  hold  the  goods  as  bailee  for  the  seller, 
but  subject  to  a  lien  to  secure  the  repayment  of  any  portion  of  the  price 
which  has  been  paid,  and  with  the  remedies  for  the  enforcement  of  such  lien 
allowed  to  an  unpaid  seller  by  section  53. 

(6.)  The  measure  of  damages  for  the  breach  of  warranty  is  the  loss  di- 
rectly and  naturally  resulting  in  the  ordinary  course  of  events,  from  the 
breach  of  warrant.v. 

(7.)  In  the  case  of  breach  of  warranty  of  quality,  such  loss,  in  the  absence 
of  special  circumstances  showing  proximate  damage  of  a  greater  amount, 
is  the  difference  between  the  value  of  the  goods  at  the  time  of  delivery  to 
the  buyer  and  the  value  they  would  have  had  if  they  had  answered  to  the 
warranty. 

Section  70. —  [Interest  and  Special  Damages.]  Nothing  in  this  act 
shall  affect  the  right  of  the  buyer  or  the  seller  to  recover  interest  or  special 
damages  in  any  case  where  by  law  interest  or  special  damages  may  be  re- 
coverable, or  to  recover  money  paid  where  the  consideration  for  the  payment 
of  it  has  failed. 

PART  VI 

Interpretation 

Section  71.— [Variation  of  Implied  Obligations.]  WTiere  any  right, 
duty  or  liability  would  arise  under  a  contract  to  sell  or  a  sale  by  implica- 
tion of  law,  it  may  be  negatived  or  varied  by  express  agreement  or  by  the 
course  of  dealing  between  the  parties,  or  by  custom,  if  the  custom  be  such 
as  to  bind  both  parties  to  the  contract  or  the  sale. 

Section  72. —  [Rights  may  be  Enforced  by  Action.]  Where  any  right, 
duty  or  liability  is  declared  by  this  act,  it  may,  unless  otherwise  by  this  act 
provided    be  enforced  by  action. 

Section  73. —  [Rule  for  Cases  Not  Provided  for  by  tbis  Act.]  In 
any  case  not  provided  for  in  this  act,  the  rules  of  law  and  equity,  including 
the  law  merchant,  and  in  particular  the  rules  relating  to  the  law  of  prin- 
cipal and  agent  and  to  the  eft'ect  of  fraud,  misrepresentation,  duress  or  coer- 
cion, mistake,  bankruptcy,  or  other  invalidating  cause,  shall  continue  to  apply 
to  contracts  to  sell  and  to  sales  of  goods. 

Section  74. —  [Interpretation  shall  Give  Effect  to  Purpose  of  Uni- 
formity.] This  act  shall  be  so  interpreted  and  construed,  if  possible,  as  to 
effectuate  its  general  purpose,  to  make  uniform  the  laws  of  those  states 
which  enact  it. 

Section  75. —  [Provisions  Not  Applicable  to  Mortgages.]  The  provi- 
.sions  of  this  act  relating  to  contracts  to  sell  and  to  sales  do  not  apply,  unless 
WooDw.  Sales — 49 


770  APPENDIX  (Pt.  6 

so  stated,  to  any  transaction  in  the  form  of  a  contract  to  sell  or  a  sale  which 
is  intended  to  operate  by  way  of  mortgage,  pledge,  charge,  or  other  security. 

Section  76.— [Definitions.]  (1.)  In  this  act,  unless  the  context  or  sub- 
ject matter  otherwise  requires — 

"Action"  includes  counterclaim,  set-ofC  and  suit  in  equity. 

"Buyer"  means  a  person  who  buys  or  agrees  to  buy  goods  or  any  legal 
successor  in  interest  of  such  person. 

"Defendant"  includes  a  plaintiff  against  whom  a  right  of  set-off  or  counter- 
claim is  asserted. 

"Delivery"  means  voluntary  transfer  of  possession  from  one  person  to 
another. 

"Divisible  contract  ro  sell  or  sale"  means  a  contract  to  sell  or  a  sale  in 
which  by  its  terms  the  price  for  a  portion  or  portions  of  the  goods  less 
than  the  whole  is  fixed  or  ascertainable  by  computation. 

"Document  of  title  to  goods"  includes  any  bill  of  lading,  dock  warrant, 
warehouse  receipt  or  order  for  the  delivery  of  goods,  or  any  other  document 
used  in  the  ordinary  course  of  business  in  the  sale  or  transfer  of  goods,  as 
proof  of  the  possession  or  control  of  the  goods,  or  authorizing  or  purporting  to 
authorize  the  possessor  of  the  document  to  transfer  or  receive,  either  by  in- 
dorsement or  by  delivery,  goods  represented  by  such  document. 

"Fault"  means  wrongful  act  or  default. 

"Fungible  goods"  means  goods  of  which  any  unit  is  from  its  nature  or  by 
mercantile  usage  treated  as  the  equivalent  of  any  other  unit. 

"Future  goods"  means  goods  to  be  manufactured  or  acquired  by  the  seller 
after  the  making  of  the  contract  of  sale. 

"Goods"  include  all  chattels  personal  other  than  things  in  action  and  mon- 
ey. The  term  includes  emblements,  industrial  growing  crops,  and  things 
attached  to  or  forming  part  of  the  land  which  are  agreed  to  be  severed  be- 
fore sale  or  under  the  contract  of  sale. 

"Order"  in  sections  of  this  act  relating  to  the  documents  of  title  means 
an  order  by  indorsement  on  the  document. 

"Person"  includes  a  corporation  or  partnership  or  two  or  more  persons 
having  a  joint  or  common  interest. 

"Plaintiff"  includes  defendant  asserting  a  right  of  set-off  or  counterclaim. 

"Property"  means  the  general  property  in  goods,  and  not  merely  a  special 
property. 

"Purchaser"  includes  mortgagee  and  pledgee. 

"Purchases"  includes  taking  as  a  mortgagee  or  as  a  pledgee. 

"Quality  of  goods"  includes  their  state  or  condition. 

"Sale"  includes  a  bargain  and  sale  as  well  as  a  sale  and  delivery. 

"Seller"  means  a  person  who  sells  or  agrees  to  sell  goods,  or  any  legal 
successor  in  interest  of  such  person. 

"Specific  goods"  means  goods  identified  and  agreed  upon  at  the  time  a 
contract  to  sell  or  a  sale  is  made. 

"Value"  is  any  consideration  sufficient  to  support  a  simple  contract.  An 
antecedent  or  pre-existing  claim,  whether  for  money  or  not,  constitutes  value 
where  goods  or  documents  of  titles  are  taken  either  in  satisfaction  thereof  or 
as  security  therefor. 

(2.)  A  thing  is  done  "in  good  faith"  within  the  meaning  of  this  act  when 
it  is  in  fact  done  honestly,  whether  it  be  done  negligently  or  not. 

(3.)  A  person  is  "insolvent"  within  the  meaning  of  this  act  who  either  has 
ceased  to  pay  his  debts  in  the  ordinary  course  of  business  or  cannot  pay  his 
debts  as  they  become  due,  whether  he  has  committed  an  act  of  bankruptcy 
or  not,  and  whether  he  is  solvent  within  the  meaning  of  the  federal  bank- 
ruptcy law  or  not. 


§§    76-79)  SALES    ACT  771 

(4.)  Goods  are  in  a  "deliverable  state"  within  the  meaning  of  this  act  when 
they  are  in  such  a  state  that  the  buyer  would,  under  the  contract,  be  bound 
to  take  delivery  of  them. 

Section  77.— [Inconsistent  Lesislation  Repealed.]  All  acts  or  parts 
of  acts  inconsistent  with  this  act  are  hereby  repealed. 

Section  78 — [Time  when  the  Act  Takes  Effect.]  This  act  shall  take 
effect  on  the  day  of  ,  one  thousand  nine  hundred  and  . 

Section   79.— [Name  of  Act.]     This  act  may  be  cited  as  the  Sales  Act. 


SALE  OF  GOODS  ACT 

AN  ACT  FOR  CODIFYING  THE  LAW  RELATING  TO  THE 

SALE  OF  GOODS 

[Chapter  71  of  56  &  57  Victoria,  February  20,  1894.] 


PART  I 

Formation  of  the  Contract 
Contract  of  Sale 

1. — (1.)  A  contract  of  sale  of  goods  is  a  contract  whereby  the  seller  transfers 
or  agrees  to  transfer  the  property  in  goods  to  the  buyer  for  a  money  con- 
sideration, called  the  price.  There  may  be  a  contract  of  sale  between  one 
part-owner  and  another. 

(2.)  A  contract  of  sale  may  be  absolute  or  conditional. 

(3.)  Where  under  a  contract  of  sale  the  property  in  the  goods  is  trans- 
ferred from  the  seller  to  the  buyer  the  contract  is  called  a  sale ;  but  where 
the  transfer  of  the  property  in  the  goods  is  to  take  place  at  a  future  time 
or  subject  to  some  condition  thereafter  to  be  fulfilled,  the  contract  is  called 
an  agreement  to  sell. 

(4.)  An  agreement  to  sell  becomes  a  sale  when  the  time  elapses  or  the  con- 
ditions are  fulfilled  subject  to  which  the  property  in  the  goods  is  to  be 
transferred. 

2.  Capacity  to  buy  and  sell  is  regulated  by  the  general  law  concerning 
capacity  to  contract,  and  to  transfer  and  acquire  property. 

Provided  that  where  necessaries  are  sold  and  delivered  to  an  infant,  or 
minor,  or  to  a  person  who  by  reason  of  mental  incapacity  or  drunkenness  is 
incompetent  to  contract,  he  must  pay  a  reasonable  price  therefor. 

Necessaries  in  this  section  mean  goods  suitable  to  the  condition  in  life 
of  such  infant  or  minor  or  other  person,  and  to  his  actual  requirements  at 
the  time  of  the  sale  and  delivery. 

Fo)-)7!alitics  of  the  Contract 

3.  Subject  to  the  provisions  of  this  Act  and  of  any  statute  in  that  behalf, 
a  contract  of  sale  may  be  made  in  writing  (either  with  or  without  seal),  or 
by  word  of  mouth,  or  partly  in  writing  and  partly  by  word  of  mouth,  or 
may  be  implied  from  the  conduct  of  the  parties. 

Provided  that  nothing  in  this  section  shall  affect  the  law  relating  to  cor- 
porations. 

4. — (1.)  A  contract  for  the  sale  of  any  goods  of  the  value  of  ten  pounds  or 
upwards  shall  not  be  enforceable  by  action  unless  the  buyer  shall  accept 
part  of  the  goods  so  sold,  and  actually  receive  the  same,  or  give  something 
in  earnest  to  bind  the  contract,  or  in  part  payment,  or  unless  sojue  note  or 
memorandum  in  writing  of  the  contract  be  made  and  signed  by  the  party  to 
be  charged  or  his  agent  in  that  behalf. 

WooDw. Sales  (772) 


§§    4-11)  SALE    OF   GOODS    ACT  773 

''2)  The  provisions  of  this  section  apply  to  every  such  contract,  notwith- 
standing that  the  goods  may  be  intended  to  be  delivered  at  some  future 
time,  or  may  not  at  the  time  of  such  contract  be  actually  made,  procured  or 
provided,  or  fit  or  ready  for  delivery,  or  some  act  may  be  requisite  for  the 
making  or  completing  thereof,  or  rendering  the  same  fit  for  delivery. 

(3.)  There  is  an  acceptance  of  goods  within  the  meaning  of  this  section 
when  the  buyer  does  any  act  In  relation  to  the  goods  which  recognizes  a  pre- 
existing contract  of  sale  whether  there  be  an  acceptance  in  perfonuance  ol 
the  contract  or  not. 

(4.)  The  provisions  of  this  section  do  not  apply  to  Scotland. 

Suljject-Matter  of  Contract 

5. — (1.)  The  goods  which  form  the  subject  of  a  contract  of  sale  may  be 
either  existing  goods,  owned  or  possessed  by  the  seller,  or  goods  to  be  manu- 
factured or  acquired  by  the  seller  after  the  making  of  the  contract  of  sale, 
in  this  Act  called  "future  goods." 

(2.)  There  may  be  a  contract  for  the  sale  of  goods,  the  acquisition  of  which 
by  the  seller  depends  upon  a  contingency  which  may  or  may  not  happen. 

(3.)  Where  by  a  contract  of  sale  the  seller  purports  to  effect  a  present  sale 
of  future  goods,  the  contract  operates  as  an  agreement  to  sell  the  goods. 

6.  Where  there  is  a  contract  for  the  sale  of  specific  goods,  and  the  goods 
without  the  knowledge  of  the  seller  have  perished  at  the  time  when  the 
contract  is  made,  the  contract  is  void. 

7.  Where  there  is  an  agreement  to  sell  specific  goods,  and  subsequently 
the  goods,  without  any  fault  on  the  part  of  the  seller  or  buyer,  perish  be- 
fore the  risk  passes  to  the  buyer,  the  agreement  is  thereby  avoided. 

The  Price 

8. — (1.)  The  price  in  a  contract  of  sale  may  be  fixed  by  the  contract,  or 
may  be  left  to  be  fixed  in  manner  thereby  agreed,  or  may  be  determined  by 
the  course  of  dealing  between  the  parties. 

(2.)  Where  the  price  is  not  determined  in  accordance  with  the  foregoing 
provisions  the  buyer  must  pay  a  reasonable  price.  What  is  a  reasonable 
price  is  a  question  of  fact  dependent  on  the  circumstances  of  each  particular 
case. 

9. — (1.)  Where  there  is  an  agreement  to  sell  goods  on  the  terms  that  the 
price  is  to  be  fixed  by  the  valuation  of  a  third  party,  and  such  third  party 
cannot  or  does  not  make  such  valuation,  the  agreement  is  avoided ;  pro- 
vided that  if  the  goods  or  any  part  thereof  have  been  delivered  to  and  ap- 
propriated by  the  buyer  he  must  pay  a  reasonable  price  therefor. 

(2.)  Where  such  third  party  is  prevented  from  making  the  valuation  by 
the  fault  of  the  seller  or  buyer,  the  party  not  in  fault  may  maintain  aui 
action  for  damages  against  the  party  in  fault. 

Conditions  and  Warranties 

10. — (1.)  Unless  a  different  intention  appears  from  the  terms  of  the  con- 
tract, stipulations  as  to  time  of  payment  are  not  deemed  to  be  of  the  essence 
of  a  contract  of  sale.  Whether  any  other  stipulation  as  to  time  is  of  the 
essence  of  the  contract  or  not  depends  on  the  terms  of  the  contract. 

(2.)  In  a  contract  of  sale  "month"  means  prima  facie  calendar  month. 

11. — (1.)  In  England  or  Ireland — 

(a.)  Where  a  contract  of  sale  is  subject  to  any  condition  to  be  fulfilled  by 
the  seller  the  buyer  may  waive  the  condition,  or  may  elect  to  treat  the  breach 


774  APPENDIX  (Pt.  1 

of  such  condition  as  a  breach  of  warranty,  and  not  as  a  ground  for  treating 
the  contract  as  repudiated. 

(b.)  Whether  a  stipulation  in  a  contract  of  sale  is  a  condition,  the  breach 
of  which  may  give  rise  to  a  right  to  treat  the  contract  as  repudiated,  or  a 
warranty,  the  breach  of  which  may  give  rise  to  a  claim  for  damages  but 
not  to  a  right  to  reject  the  goods  and  treat  the  contract  as  repudiated,  de- 
pends in  each  case  on  the  construction  of  the  contract.  A  stipulation  may 
be  a  condition,  though  called  a  warranty  in  the  contract. 

(c.)  Where  a  contract  of  sale  is  not  severable,  and  the  buyer  has  accepted 
the  goods,  or  part  thereof,  or  where  the  contract  is  for  specific  goods,  the 
property  in  which  has  passed  to  the  buyer,  the  breach  of  any  condition  to  be 
fulfilled  by  the  seller  can  only  be  treated  as  a  breach  of  warranty,  and  not 
as  a  ground  for  rejecting  the  goods  and  treating  the  contract  as  repudiated, 
unless  there  be  a  term  of  the  contract,  express  or  implied,  to  that  effect. 

(2.)  In  Scotland,  failure  by  the  seller  to  perform  any  material  part  of  a 
contract  of  sale  is  a  breach  of  contract,  which  entitles  the  buyer  either 
within  a  reasonable  time  after  delivery  to  reject  the  goods  and  treat  the  con- 
tract as  repudiated,  or  to  retain  the  goods  and  treat  the  failure  to  perform 
such  material  part  as  a  breach  which  may  give  rise  to  a  claim  for  compensa- 
tion or  damages. 

(3.)  Nothing  in  this  section  shall  affect  the  case  of  any  condition  or  war- 
ranty, fulfillment  of  which  is  excused  by  law  by  reason  of  impossibility  or 
otherwise. 

12.  In  a  contract  of  sale,  unless  the  circumstances  of  the  contract  are 
such  as  to  show  a  different  intention,  there  is — 

(1.)  An  impUed  condition  on  the  part  of  the  seller  that  in  the  case  of  a 
sale  he  has  a  right  to  sell  the  goods,  and  that  in  the  case  of  an  agreement  to 
sell  he  will  have  a  right  to  sell  the  goods  at  the  time  when  the  property  is 
to  pass ; 

(2.)  An  implied  warranty  that  the  buyer  shall  have  and  enjoy  quiet  pos- 
session of  the  goods ; 

(3.)  An  implied  warranty  that  the  goods  shall  be  free  from  any  charge  or 
encumbrance  in  favor  of  any  third  party,  not  declared  or  known  to  the 
buyer  before  or  at  the  time  when  the  contract  is  made. 

13.  Where  there  is  a  contract  for  the  sale  of  goods  by  description,  there 
is  an  implied  condition  that  the  goods  shall  correspond  with  the  description ; 
and  if  the  sale  be  by  sample,  as  well  as  by  description,  it  is  not  sufiicient 
that  the  bulk  of  the  goods  corresponds  with  the  sample  if  the  goods  do  not 
also  correspond  with  the  description. 

14.  Subject  to  the  provisions  of  this  Act  and  of  any  statute  in  that  be- 
half, there  is  no  implied  warranty  or  condition  as  to  the  quality  or  fitness 
for  any  particular  purpose  of  goods  supplied  under  a  contract  of  sale,  ex- 
cept as  follows: 

(1.)  Where  the  buyer,  expressly  or  by  implication,  makes  known  to  the 
seller  the  particular  purpose  for  which  the  goods  are  required,  so  as  to  show 
that  the  buyer  relies  on  the  seller's  skill  or  judgment,  and  the  goods  are  of 
a  description  which  it  is  in  the  course  of  the  seller's  business  to  supply 
(whether  he  be  the  manufacturer  or  not),  there  is  an  implied  condition  that 
the  goods  shall  be  reasonably  fit  for  such  purpose,  provided  that  in  the  case 
of  a  contract  for  the  sale  of  a  specified  article  under  its  patent  or  other 
trade  name,  there  is  no  implied  condition  as  to  its  fitness  for  any  particular 
purpose ; 

(2.)  Where  goods  are  bought  by  description  from  a  seller  who  deals  in  goods 
of  that  description,  (whether  he  be  the  manufacturer  or  not),  there  is  an 
implied  condition  that  the  goods  shall  be  of  merchantable  quality;  provided 


§§    14-18)  SALE    OP   GOODS    ACT  775 

that  if  the  buyer  has  examined  tlie  goods,  there  shall  be  no  implied  con- 
dition as  regards  defects  which   such  examination  ought  to  have  revealed; 

(3.)  An  implied  warranty  or  condition  as  to  quality  or  fitness  for  a  par- 
ticular purpose  may  be  annexed  by  the  usage  of  trade ; 

(4.)  An  ex])ress  warranty  or  condition  does  not  negative  a  warranty  or  con- 
dition implied  by  this  Act  unless  inconsistent  therewith. 

Sale  by  Sample 

15. — (1.)  A  contract  of  sale  is  a  contract  for  sale  by  sample  where  there  is 
a  term  in  the  contract,  express  or  implied,  to  that  efCect. 

(2.)  In  the  case  of  a  contract  for  sale  by  sample— 

(a.)  There  is  an  implied  condition  that  the  bulk  shall  correspond  witi  the 
sample  in  quality ; 

(b.)  There  is  an  implied  condition  that  the  buyer  shall  have  a  reasonable 
opportunity  of  comparing  the  bulk  with  the  sample ; 

(c.)  There  is  an  implied  condition  that  the  goods  shall  be  free  from  any 
defect,  rendering  them  unmerchantable,  which  would  not  be  apparent  on 
reasonable  examination  of  the  sample. 


PART  II 

Effects  of  the  Contract 

Transfer  of  Property  as  Between  Seller  and  Buyer 

16.  Where  there  is  a  contract  for  the  sale  of  unascertained  goods  no  prop-, 
erty  in  the  goods  is  transferred  to  the  buyer  unless  and  until  the  goods  are 
ascertained. 

17. — (1.)  Where  there  is  a  contract  for  the  sale  of  specific  or  ascertained 
goods  the  property  in  them  is  transferred  to  the  buyer  at  such  time  as  the 
parties  to  the  contract  intend  it  to  be  transferred. 

(2.)  For  the  purpose  of  ascertaining  the  intention  of  the  parties  regard 
shall  be  had  to  the  terms  of  the  contract,  the  conduct  of  the  parties,  and 
the  circumstances  of  the  case. 

18.  Unless  a  different  intention  appears,  the  following  are  rules  for  as- 
certaining the  intention  of  the  parties  as  to  the  time  at  which  the  property 
in  the  goods  is  to  pass  to  the  buyer. 

Rule  1. — Where  there  is  an  unconditional  contract  for  the  sale  of  specific 
goods,  in  a  deliverable  state,  the  property  in  the  goods  passes  to  the  buyer 
when  the  contract  is  made,  and  it  is  immaterial  whether  the  time  of  pay- 
ment or  the  time  of  delivery,  or  both,  be  postponed. 

Rule  2. — Where  there  is  a  contract  for  the  sale  of  specific  goods  and  the 
seller  is  bound  to  do  something  to  the  goods,  for  the  purpose  of  putting  them 
into  a  deliverable  state,  the  property  does  not  pass  until  such  thing  be  done, 
and  the  buyer  has  notice  thereof. 

Rule  3. — Where  there  is  a  contract  for  the  sale  of  specific  goods  in  a  de- 
liverable state,  but  the  seller  is  bound  to  weigh,  measure,  test,  or  do  some 
other  act  or  thing  with  reference  to  the  goods  for  the  purpose  of  ascertaining 
the  price,  the  property  does  not  pass  until  such  act  or  thing  is  done,  and  the 
buyer  has  notice  thereof. 

Rule  4. — When  goods  are  delivered  to  the  buyer  on  approval,  or  "on  sale 
or  return"  or  other  similar  terms  the  property  therein  passes  to  the  bu\er. 

(a.)  When  he  signifies  his  approval  or  acceptance  to  the  seller  or  does  any 
other  act  adopting  the  transaction; 


776  APPENDIX  (Pt.  2 

(b.)  If  he  does  not  signify  his  approval  or  acceptance  to  the  seller,  but  re- 
tains the  goods  AA-ithout  giving  notice  of  rejection,  then,  if  a  time  has  been 
fixed  for  the  return  of  the  goods,  on  the  expiration  of  such  time,  and,  if  no 
time  has  been  fixed,  on  the  expiration  of  a  reasonable  time.  What  is  a 
reasonable  time  is  a  question  of  fact. 

Rule  5. — (1.)  Where  there  is  a  contract  for  the  sale  of  unascertained  05 
future  goods  by  description,  and  goods  of  that  description  and  in  a  deliver- 
able state  are  unconditionally  appropriated  to  the  contract,  either  by  the 
seller  A\'ith  the  assent  of  the  buyer,  or  by  the  buyer  with  the  assent  of  the 
seller,  the  property  in  the  goods  thereupon  passes  to  the  buyer.  Such  as- 
sent may  be  express  or  implied,  and  may  be  given  either  before  or  after  the 
appropriation  is  made. 

(2.)  Where,  in  pursuance  of  the  contract,  the  seller  delivers  the  goods  to 
the  buyer  or  to  a  carrier  or  other  bailee  or  custodier  (whether  named  by  the 
buyer  or  not)  for  the  purpose  of  transmission  to  the  buyer,  and  does  not 
reserve  the  right  of  disposal,  he  is  deemed  to  have  unconditionally  appro- 
priated the  goods  to  the  contract. 

19. — (1.)  Where  there  is  a  contract  for  the  sale  of  specific  goods  or  where 
goods  are  subsequently  appropriated  to  the  contract,  the  seller  may,  by  the 
terms  of  the  contract  or  appropriation,  reserve  the  right  of  disposal  of  the 
goods  until  certain  conditions  are  fulfilled.  In  such  case,  notwithstanding, 
the  delivery  of  the  goods  to  the  buyer,  or  to  a  carrier  or  other  bailee  or  cus- 
todier for  the  purpose  of  tran.smission  to  the  buyer,  the  property  in  the  goods 
does  not  pass  to  the  buyer  until  the  conditions  imposed  by  the  seller  are 
fulfilled. 

(2.)  Where  goods  are  shipped,  and  by  the  bill  of  lading  the  goods  are  de- 
liverable to  the  order  of  the  seller  or  his  agent,  the  seller  is  prima  facie 
deemed  to  reserve  the  right  of  disposal. 

(3.)  Where  the  seller  of  goods  draws  on  the  buyer  for  the  price,  and  trans- 
mits the  bill  of  exchange  and  bill  of  .lading  to  the  buyer  together  to  secure 
acceptance  or  payment  of  the  bill  of  exchange,  the  buyer  is  bound  to  return 
the  bill  of  lading  if  he  does  not  honor  the  bill  of  exchange,  and  if  he  wrong- 
fully retains  the  bill  of  lading  the  property  in  the  goods  does  not  pass  to  him. 

20.  Unless  otherwise  agreed,  the  goods  remain  at  the  seller's  risk  until 
the  property  therein  is  transferred  to  the  buyer,  but  when  the  property 
therein  is  transferred  to  the  buyer,  the  goods  are  at  the  buyer's  risk 
whether  delivery  has  been  made  or  not. 

Provided  that  where  delivery  has  been  delayed  through  the  fault  of  either 
buyer  or  seller  the  goods  are  at  the  risk  of  the  party  in  fault  as  regards  any 
loss  which  might  not  have  occurred  but  for  such  fault. 

Provided  also  that  nothing  in  this  section  shall  affect  the  duties  or  lia- 
bilities of  either  seller  or  buyer  as  a  bailee  or  custodier  of  the  goods  of  the 
other  party. 

Transfer  of  Title 

21. — (1.)  Subject  to  the  provisions  of  this  Act,  where  goods  are  sold  by  a 
person  who  is  not  the  owner  thereof,  and  who  does  not  sell  them  under  the 
authority  or  with  the  consent  of  the  owner,  the  buyer  acquires  no  better  title 
to  the  goods  than  the  seller  had,  unless  the  owner  of  the  goods  is  by  his 
conduct  precluded  from  denying  the  seller's  authority  to  sell. 
(2.)  Provided  also  that  nothing  in  this  Act  shall  affect — 
(a.)  The  provisions  of  the  Factor's  Acts,  or  any  enactment  enabling  the 
apparent  owner  of  goods  to  dispose  of  them  as  if  he  were  the  true  owner 
thereof ; 


§§    21-26)  SALE    OF   GOODS    ACT  777 

(b.)  The  validity  of  any  contract  of  sale  under  any  special  common  law  or 
statutory  power  of  sale  or  under  the  order  of  a  court  of  competent  juris- 
diction. 

22.— (1.)  Where  goods  are  sold  in  market  overt,  according  to  the  usage  of 
the  market,  the  buyer  acquires  a  good  title  to  the  goods,  provided  he  buys 
them  in  good  faith  and  without  notice  of  any  defect  or  want  of  title  on  the 
part  of  the  seller. 

(2.)  Nothing  in  this  action  shall  affect  the  law  relating  to  the  sale  of  horses. 

(3.)  The  provisions  of  this  section  do  not  apply  to  Scotland. 

23.  When  the  seller  of  goods  has  a  voidable  title  thereto,  but  his  title 
has  not  been  avoided  at  the  time  of  the  sale,  the  buyer  acquires  a  good 
title  to  the  goods,  provided  he  buys  them  in  good  faith  and  without  notice 
of  the  seller's  defect  of  title. 

24. — (1.)  Wliere  goods  have  been  stolen  and  the  offender  is  prosecuted  to 
conviction,  the  property  in  the  goods  so  stolen  revests  in  the  person  who  was 
the  owner  of  the  goods,  or  his  personal  representative,  notwithstanding  any 
intermediate  dealing  with  them,  whether  by  sale  in  market  overt  or  otherwise. 

(2.)  Notwithstanding  any  enactment  to  the  contrary,  where  goods  have 
been  obtained  by  fraud  or  other  wrongful  means  not  amounting  to  larceny, 
the  property  in  such  goods  shall  not  revest  in  the  person  who  was  the  owner 
of  the  goods,  or  his  personal  representative,  by  reason  only  of  the  conviction 
of  the  offender. 

(3.)  The  provisions  of  this  section  do  not  apply  to  Scotland. 

25.— (1.)  Where  a  person  having  sold  goods  continues  or  is  in  possession 
of  the  goods,  or  of  the  documents  of  title  to  the  goods,  the  delivery  or  transfer 
by  that  person,  or  by  a  mercantile  agent  acting  for  him,  of  the  goods  or 
documents  of  title  under  any  sale,  pledge,  or  other  disposition  thereof,  to 
any  person  receiving  the  same  in  good  faith  and  without  notice  of  the  pre- 
vious sale,  shall  have  the  same  effect  as  if  the  person  making  the  delivery 
or  transfer  were  expressly  authorized  by  the  owner  of  the  goods  to  make  the 
same. 

(2.)  Where  a  person  having  bought  or  agreed  to  buy  goods  obtains,  with 
the  consent  of  the  seller,  possession  of  the  goods,  or  the  documents  of  title 
to  the  goods,  the  delivery  or  transfer  by  that  pei'son,  or  by  a  mercantile 
agent  acting  for  him,  of  the  goods  or  documents  of  title,  under  any  sale, 
pledge,  or  other  disposition  thereof,  to  any  person  receiving  the  same  in  good 
faith  and  without  notice  of  any  lien  or  other  right  of  the  original  seller  in 
respect  of  the  goods,  shall  have  the  same  effect  as  if  the  person  making  the 
delivery  or  transfer  were  a  mercantile  agent  in  possession  of  the  goods  or 
documents  of  title  with  the  consent  of  the  owner. 

(3.)  In  tills  section  the  term  "mercantile  agent"  has  the  same  meaning  as 
in  the  Factors  Acts. 

26. — (1.)  A  writ  of  fieri  facias  or  other  writ  of  execution  against  goods 
shall  bind  the  property  in  the  goods  of  the  execution  debtor  as  from  the 
time  when  the  writ  is  delivered  to  the  sheriff  to  be  executed ;  and,  for  the 
better  manifestation  of  such  time,  it  shall  be  the  duty  of  the  sheriff,  without 
fee,  upon  the  receipt  of  any  such  writ  to  indorse  upon  the  back  thereof  the 
hour,  day,  month,  and  year  when  he  received  the  same. 

Provided  that  no  such  writ  shall  prejudice  the  title  to  such  goods  ac- 
quired by  any  person  in  good  faith  and  for  valuable  consideration,  unless 
such  person  had  at  the  time  when  he  acquired  his  title  notice  that  such  writ 
or  any  other  writ  by  virtue  of  which  the  goods  of  the  execution  debtor  might 
be  seized  or  attached  had  been  delivered  to  and  remained  unexecuted  in  the 
hands  of  the  sheriff. 


778  APPENDIX  (Pt.  2 

(2.)  In  this  section  the  term  "sheriff"  includes  any  officer  charged  with  the 
enforcement  of  a  writ  of  execution. 

(3.)  The  provisions  of  this  section  do  not  apply  to  Scotland. 


PART  III 
Performance  of  the  Contract 

27.  It  is  the  duty  of  the  seller  to  deliver  the  goods,  and  of  the  buyer  to 
accept  and  pay  for  them,  in  accordance  with  the  terms  of  the  contract  of 
sale. 

28.  Unless  otherwise  agreed,  delivery  of  the  goods,  and  payment  of  the 
price  are  concurrent  conditions,  that  is  to  say,  the  seller  must  be  ready  and 
willing  to  give  possession  of  the  goods  to  the  buyer  in  exchange  for  the 
price,  and  the  buyer  must  be  ready  and  willing  to  pay  the  price  in  exchange 
for  possession  of  the  goods. 

29. — (1.)  Whether  it  is  for  the  buyer  to  take  possession  of  the  goods  or 
for  the  seller  to  send  them  to  the  buyer  is  a  question  depending  in  each  case 
on  the  contract,  express  or  implied,  between  the  parties.  Apart  from  any 
such  contract,  express  or  implied,  the  place  of  delivery  is  the  seller's  place 
of  business,  if  he  have  one,  and  if  not.  his  residence;  provided  that,  if  the 
contract  be  for  the  sale  of  specific  goods,  which  to  the  knowledge  of  the 
parties  when  the  contract  is  made  are  in  some  other  place,  then  that  place  is 
the  place  of  delivery. 

(2.)  Where  under  the  contract  of  sale  the  seller  is  bound  to  send  the  goods 
to  the  buyer,  but  no  time  for  sending  them  is  fixed,  the  seller  is  bound  to  send 
them  within  a  reasonable  time. 

(3.)  Where  the  goods  at  the  time  of  sale  are  in  the  possession  of  a  third 
person,  there  is  no  delivery  by  seller  to  buyer  unless  and  until  such  third 
person  acknowledges  to  the  buyer  that  he  holds  the  goods  on  his  behalf; 
provided  that  nothing  in  this  section  shall  affect  the  operation  of  the  issue 
or  transfer  of  any  document  of  title  to  goods. 

(4.)  Demand  or  tender  of  delivery  may  be  treated  as  ineffectual  unless  made 
at  a  reasonable  hour.     What  is  a  reasonable  hour  is  a  question  of  fact. 

(5.)  Unless  otherwise  agreed,  the  expenses  of  and  incidental  to  putting  the 
goods  into  a  deliverable  state  must  be  borne  by  the  seller. 

30. — (1.)  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods  less 
than  he  contracted  to  sell,  the  buyer  may  reject  them,  but  if  the  buyer  ac- 
cepts the  goods  so  delivered  he  must  pay  for  them  at  the  contract  rate. 

(2.)  Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods  larger  than 
he  contracted  to  sell,  the  buyer  may  accept  the  goods  included  in  the  con- 
tract and  reject  the  rest,  or  he  may  reject  the  whole.  If  the  buyer  accepts 
the  whole  of  the  goods  so  delivered  he  must  pay  for  them  at  the  contract 
rate. 

(3.)  Where  the  seller  delivers  to  the  buyer  the  goods  he  contracted  to  sell 
mixed  with  goods  of  a  different  description  not  included  in  the  contract,  the 
buyer  may  accept  the  goods  which  are  in  accordance  with  the  contract  and 
reject  the  rest,  or  he  may  reject  the  whole. 

(4.)  The  provisions  of  this  section  are  subject  to  any  usage  of  trade,  spe- 
cial agreement,  or  course  of  dealing  between  the  parties. 

31. — (1.)  Unless  otherwise  agreed,  the  buyer  of  the  goods  is  not  bound  to 
accept  delivery  thereof  by  instalments. 

(2.)  Where  there  is  a  contract  for  the  sale  of  goods  to  be  delivered  by 
stated  instalments,  which  are  to  be  separately  paid  for.  and  the  seller  makes 
defective  deliveries  in  respect  of  one  or  more  instalments,  or  the  buyer  neg- 


§§    32-37)  SALE    OF   GOODS    ACT  779 

lects  or  refuses  to  take  delivery  of  or  pay  for  one  or  more  insralraents,  It 
is  a  question  in  each  case  depending  on  the  terms  of  the  contract  and  the 
circumstances  of  the  case,  whether  the  breacli  of  contract  is  a  repudiation 
of  the  whole  contract  or  whether  it  is  a  severable  breach  giving  rise  to  a 
claim  for  compensation  but  not  to  a  right  to  treat  the  whole  contract  as  re- 
pudiated. 

32. — (1.)  Where,  in  pursuance  of  a  contract  of  sale,  the  seller  is  authorized 
or  required  to  send  tlie  goods  to  the  buyer,  delivery  of  the  goods  to  a  car- 
rier, whether  named  by  the  buyer  or  not.  for  the  purpose  of  transmission 
to  the  buyer  is  prima  facie  deemed  to  be  a  delivery  of  the  goods  to  the  buyer. 

(2.)  Unless  otherwise  authorized  by  the  buyer,  the  seller  must  make  such 
contract  wath  the  carrier  on  behalf  of  the  buyer  as  may  be  reasonable  hav- 
ing regard  to  the  nature  of  the  goods  and  the  other  circumstances  of  the  case. 
If  the  seller  omit  so  to  do.  and  the  goods  are  lost  or  damaged  in  course  of 
transit,  the  buyer  may  decline  to  treat  the  delivery  to  the  carrier  as  a  de- 
livery to  himself,  or  may  hold  the  seller  responsible  in  damages. 

(3.)  Unless  otherwise  agreed,  where  goods  are  sent  by  the  seller  to  the 
buyer  by  a  route  involving  .sea  transit,  under  circumstances  in  which  it  is 
usual  to  insure,  the  seller  must  give  such  notice  to  the  buyer  as  may  enable 
him  to  insure  them  during  their  sea  transit,  and,  if  the  seller  fails  to  do  so, 
the  goods  shall  be  deemed  to  be  at  his  risk  during  such  sea  transit. 

33.  Where  the  seller  of  goods  agrees  to  deliver  them  at  his  own  risk  at  a 
place  other  than  that  where  they  are  when  sold,  the  buyer  must,  neverthe- 
less, unless  otherwise  agreed,  take  any  risk  of  deterioration  in  the  goods  nec- 
essarily incident  to  the  course  of  transit. 

34. — (1.)  Where  goods  are  delivered  to  the  buyer,  which  he  has  not  pre- 
viously examined,  he  is  not  deemed  to  have  accepted  them  unless  and  until 
he  has  had  a  reasonable  opportunity  of  examining  them  for  the  purpose  of 
ascertaining  whether  they  are  in  conformity  with  the  contract. 

(2.)  Unless  otherwise  agreed,  when  the  .seller  tenders  delivery  of  goods  t'j 
the  buyer,  he  is  bound,  on  request,  to  afford  the  buyer  a  reasonable  op- 
portunity of  examining  the  goods  for  the  purpose  of  ascertaining  whether 
they  are  in  conformity  with  the  contract. 

35.  The  buyer  is  deemed  to  have  accepted  the  goods  when  he  intimates  to 
the  seller  that  he  has  accepted  them,  or  when  the  goods  have  been  delivered  to 
him,  and  he  does  any  act  in  relation  to  them  which  is  inconsistent  with  the 
ownership  of  the  seller,  or  when  after  the  lapse  of  a  reasonable  time,  he  re- 
tains the  goods  without  intimating  to  the  seller  that  he  has  rejected  them. 

36.  Unless  otherwise  agreed  where  goods  are  delivered  to  the  buyer,  and 
he  refuses  to  accept  them,  having  the  right  so  to  do,  he  is  not  bound  to 
return  them  to  the  seller,  but  it  is  sufficient  if  he  intimates  to  the  seller  that 
he  refuses  to  accept  them. 

37.  When  the  seller  is  ready  and  willing  to  deliver  the  goods,  and  re- 
quests the  buyer  to  take  delivery,  and  the  buyer  does  not  within  a  reasonable 
time  after  such  request  take  delivery  of  the  goods,  he  is  liable  to  the  seller 
for  any  loss  occasioned  by  his  neglect  or  refusal  to  take  delivery,  and  also 
for  a  reasonable  charge  for  the  care  and  custody  of  the  goods.'  Provided 
that  nothing  in  this  section  shall  affect  the  rights  of  the  seller  where  the  neg- 
lect or  refusal  of  the  buyer  to  take  delivery  amounts  to  a  repudiation  of  the 
contract. 


780  APPENDIX  (Pt.  4 

PART  TV 
Rifihfs  of  Unpaid  Seller  against  the  Goods 

38. — (1.)  The  seller  of  goods  is  deemed  to  be  an  "unpaid  seller"  within 
the  meaning  of  this  Act — 

(a.)  When  the  whole  of  the  price  has  not  been  paid  or  tendered ; 

(b.)  When  a  bill  of  exchange  or  other  negotiable  instrument  has  been  re- 
ceived as  conditional  payment,  and  the  condition  on  which  it  was  received 
has  not  been  fulfilled  by  reason  of  the  dishonor  of  the  instrument  or  other- 
wise. 

(2.)  In  this  part  of  this  Act  the  term  "seller"  includes  any  person  who  is 
in  the  position  of  a  seller,  as,  for  instance,  an  agent  of  the  seller  to  whom 
the  bill  of  lading  has  been  indorsed,  or  a  consignor  or  agent  who  has  him- 
self paid,  or  is  directly  responsible  for.  the  price. 

39. — (1.)  Sub,iect  to  the  provisions  of  this  Act.  and  of  any  statute  in  that 
behalf,  notwithstanding  that  the  property  in  the  goods  may  have  passed  to 
the  buyer,  the  impaid  seller  of  goods,  as  such,  has  by  implication  of  law- 
la.)  A  lien  on  the  goods  or  right  to  retain  thein  for  the  price  while  he  is 
in  possession  of  them ; 

(b.)  In  case  of  the  insolvency  of  the  buyer,  a  right  of  stopping  the  goods 
in  transitu  after  he  has  parted  with  the  possession  of  them ; 

(c.)  A  right  of  re-sale  as  limited  by  this  Act. 

(2.)  Where  the  property  in  goods  has  not  passed  to  the  buyer,  the  unpaid 
seller  has,  in  addition  to  his  other  remedies,  a  right  of  withholding  delivery 
similar  to  and  co-extensive  with  his  rights  of  lien  and  stoppafO;^  in  transitu 
where  the  property  has  passed  to  the  buyer. 

40.  In  Scotland  a  seller  of  goods  may  attach  the  same  while  in  his  own 
hands  or  possession  by  arrestment  or  poinding;  and  such  arrestment  or 
poinding  shall  have  the  same  operation  and  effect  in  a  competition  or  oth- 
erwise as  an  arrestment  or  poinding  by  a  tliird  party. 

Unpaid  Seller's  Lien 

41. — (1.)  Subject  to  the  provisions  of  this  Act,  the  unpaid  seller  of  goods 
who  is  in  possession  of  them  is  entitled  to  retain  possession  of  them  until 
payment  or  tender  of  the  price  in  the  following  cases,  namely: 

(a.)  Where  the  goods  have  been  sold  without  any  stipulation  as  to  credit; 

(b.)  Where  the  goods  have  been  sold  on  credit,  but  the  term  of  credit  has 
expired ; 

(c.)  Where  the  buyer  becomes  insolvent. 

(2.)  The  seller  may  exercise  his  right  of  lien  notwithstanding  that  he  is  in 
possession  of  the  goods  as  agent  or  bailee  or  custodier  for  the  buyer. 

42.  Where  an  unpaid  seller  has  made  part  delivery  of  the  goods,  he  may 
exercise  his  right  of  lien  or  retention  on  the  remainder,  unless  such  part 
delivery  has  been  made  under  such  circumstances  as  to  show  an  agreement 
to  waive  the  lien  or  right  of  retention. 

43.— (1.)  The  unpaid  seller  of  goods  loses  his  lien  or  right  of  retention 
thereon — ■ 

(a.)  TMien  he  delivers  the  goods  to  a  carrier  or  other  bailee  or  custodier, 
for  the  piirpose  of  transmission  to  the  buyer  without  reserving  the  right  of 
disposal  of  the  goods ; 

(b.)  When  the  buyer  or  his  agent  lawfully  obtains  possession  of  the  goods; 

(c.)  By  waiver  thereof. 


§§    43-47)  SALE    OF   GOODS    ACT  781 

(2.)  The  unpaid  seller  of  goods,  having  a  lien  or  right  of  retention  thereon, 
by  reason  only  that  he  has  obtained  judgment  or  decree  for  the  price  of  the 
goods. 

Stoppage  in  Transitu 

44.  Subject  to  the  provisions  of  this  Act,  when  the  buyer  of  goods  be- 
comes insolvent,  tlie  unpaid  seller  who  has  parted  with  the  possession  of  tlie 
goods  has  the  right  of  stopping  them  in  transitu,  that  is  to  say,  he  may  re- 
sume possession  of  tlie  goods  as  long  as  they  are  in  course  of  transit,  and 
may  retain  them  until  payment  or  tender  of  the  price. 

45. — (1.)  Goods  are  deemed  to  be  in  course  of  transit  from  the  time  when 
they  are  delivered  to  a  carrier  by  land  or  water,  or  other  bailee  or  cus- 
todier for  the  purpose  of  transmission  to  the  buyer,  until  the  buyer,  or  his 
agent  in  that  behalf,  takes  delivery  of  them  from  such  carrier  or  other  bailee 
or  custodier. 

(2.)  If  the  buyer  or  his  agent  in  that  behalf  obtains  delivery  of  the  goods 
before  their  arrival  at  the  appointed  destination,  the  transit  is  at  an  end. 

(3.)  If.  after  the  arrival  of  the  goods  at  the  appointed  destination,  the  car- 
rier  or  other  bailee  or  custodier  acknowledges  to  the  buyer,  or  his  agent, 
that  he  holds  the  goods  on  his  behalf  and  continues  in  possession  of  them 
as  bailee  or  custodier  for  the  buyer,  or  his  agent,  the  transit  is  at  an  end, 
and  it  is  immaterial  that  a  further  destination  for  the  goods  may  have  been 
indicated  by  the  buyer. 

(.4.)  If  the  goods  are  rejected  by  the  buyer,  and  the  carrier  or  other  bailee 
or  custodier  continues  in  possession  of  them,  the  transit  is  not  deemed  to  be 
at  an  end,  even  if  the  seller  lias  refused  to  receive  them  back. 

(5.)  When  goods  are  delivered  to  a  ship  chartered  by  the  buyer  it  is  a 
question  depending  on  the  circumstances  of  the  particular  case,  whether  they 
are  in  the  possession  of  the  master  as  a  carrier,  or  as  agent  to  the  buyer. 

(6.)  Where  the  carrier  or  other  bailee  or  custodier  wrongfully  refuses  to 
deliver  the  goods  to  the  buyer,  or  his  agent  in  that  behalf,  the  transit  is 
deemed  to  be  at  an  end. 

(7.)  Where  part  delivery  of  the  goods  hfls  been  made  to  the  buyer,  or  his 
agent  in  that  behalf,  the  remainder  of  the  goods  may  be  stopped  in  transitu, 
unless  such  part  delivery  has  been  made  under  such  circumstances  as  to 
show  an  agreement  to  give  up  possession  of  the  whole  of  the  goods. 

46. — (1.)  The  unpaid  seller  may  exercise  his  right  of  stoppage  in  transitu 
either  by  taking  actual  possession  of  the  goods,  or  by  giving  notice  of  his 
claim  to  the  carrier  or  other  bailee  or  custodier  in  whose  possession  the 
goods  are.  Such  notice  may  be  given  either  to  the  person  in  actual  posses- 
sion of  the  goods  or  to  his  principal.  In  the  latter  case  the  notice,  to  be 
effectual,  must  be  given  at  such  time  and  under  such  circumstances  that 
the  principal,  by  the  exercise  of  reasonable  diligence,  may  communicate  it 
to  his  servant  or  agent  in  time  to  preveut  a  delivery  to  the  buyer. 

(2.)  When  notice  of  stoppage  in  transitu  is  given  by  the  seller  to  the 
carrier,  or  other  bailee  or  custodier  in  possession  of  the  goods,  he  must  re- 
deliver the  goods  to,  or  according  to  the  directions  of,  the  seller.  The  ex- 
penses of  such  redelivery  must  be  borne  by  the  seller. 

Re-Sale  hy  Buyer  or  Seller 

47.  Subject  to  the  provisions  of  this  Act,  the  unpaid  seller's  right  of 
lien  or  retention  or  stoppage  in  transitu  is  not  affected  by  any  sale,  or  other 
disposition  of  the  goods  which  the  buyer  may  have  made,  unless  the  seller 
lias  assented  thereto. 


782  APPENDIX  (Pt.  -i 

Provided  that  where  a  documeut  of  title  to  goods  has  been  lawfully  trans- 
ferred to  any  person  as  buyer  or  owner  of  the  goods,  and  that  person  trans- 
fers the  document  to  a  person  who  takes  the  document  in  good  faith  and 
for  valuable  consideration,  then,  if  such  last-meutioued  transfer  was  by 
way  of  sale  the  unpaid  seller's  right  of  lien  or  retention  or  stoppage  in 
transitu  is  defeated,  aiid  if  such  last-mentioned  transfer  was  by  way  of 
pledge  or  other  disposition  for  value,  the  unpaid  seller's  right  of  lien  or 
retention  or  stoppage  in  transitu  can  only  be  exercised  subject  to  the  rights 
of  the  transferee. 

48. — (1.)  Subject  to  the  provisions  of  this  section,  a  contract  of  sale  is  not 
rescinded  by  the  mere  exercise  by  an  unpaid  seller  of  his  right  of  lien  or 
retention  or  stoppage  in  transitu. 

(2.)  Where  an  unpaid  seller  who  has  exercised  his  right  of  lien  or  reten- 
tion or  stoppage  in  transitu  resells  the  goods,  the  buyer  acquires  a  good  title 
thereto  as  against  the  original  buyer. 

(3.)  Where  the  goods  are  of  a  perishable  nature,  or  where  the  unpaid  seller 
gives  notice  to  the  buyer  of  his  intention  to  resell,  and  the  buyer  does  not 
within  a  reasonable  time  pay  or  tender  the  price,  the  unpaid  seller  may 
resell  the  goods  and  recover  from  the  original  buyer  damages  for  any  loss 
occasioned  by  his  breach  of  contract. 

(4.)  Where  the  seller  expressly  reserves  a  right  of  resale  in  case  the  buyer 
should  make  default,  and  on  the  buyer  making  default,  resells  the  goods, 
the  original  contract  of  sale  is  thereby  rescinded,  but  without  prejudice  to 
any  claim  the  seller  may  have  for  damages. 


PART  V 

Actions  foe  Breach  of  the  Contract 
Remedies  of  the  Seller 

49. — (1.)  Where,  under  a  contract  of  sale,  the  property  in  the  goods  has 
passed  to  the  buyer,  and  the  buyer  wrongfully  neglects  or  refuses  to  pay  for 
the  goods  according  to  the  terms  of  the  contract,  the  seller  may  maintain 
an  action  against  him  for  the  price  of  the  goods. 

(2.)  Where,  under  a  contract  of  sale,  the  price  is  payable  on  a  day  certain 
irrespective  of  delivery,  and  the  buyer  wrongfully  neglects  or  refuser-  to 
pay  such  price,  the  seller  may  maintain  an  action  for  the  price,  although 
the  property  in  the  goods  has  not  passed,  and  the  goods  have  not  been 
appropriated  to  the  contract. 

(3.)  Nothing  in  this  section  shall  prejudice  the  right  of  the  seller  in 
Scotland  to  recover  interest  on  the  price  from  the  date  of  tender  of  the 
goods,  or  from  the  date  on  which  the  price  was  payable,  as  the  case  may  be. 

50. — (1.)  Where  the  buyer  wrongfully  neglects  or  refuses  to  accept  and 
pay  for  the  goods,  the  seller  may  maintain  an  action  against  him  for  dam- 
ages for  non-acceptance. 

(2.)  The  measure  of  damages  is  the  estimated  loss  directly  and  naturally 
resulting,  in  the  ordinary  course  of  events,  from  the  buyer's  breach  of  con- 
tract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in  question  the 
measure  of  damages  is  prima  facie  to  be  ascertained  by  the  difference  be- 
tween the  contract  price  and  the  market  or  current  price  at  the  time  or 
times  when  the  goods  ought  to  have  been  accepted,  or,  if  no  time  was  fixed 
for  acceptance,  then  at  the  time  of  the  refusal  to  accept. 


§§    51-55)  SALE    OF   GOODS    ACT  783 

Remedies  of  the  Buyer 

51. — (1.)  Where  the  seller  wrongfully  neglects  or  refuses  to  deliver  the 
goods  to  the  buyer,  the  buyer  may  maintain  an  action  against  the  seller 
for  damages  for  non-delivery. 

(2.)  The  measure  of  damages  is  the  estimated  loss  directly  and  naturally 
resulting,  in  the  ordinary  course  of  events,  from  the  seller's  breach  of  con- 
tract. 

(3.)  Where  there  is  an  available  market  for  the  goods  in  question  the 
measure  of  damages  is  prima  facie  to  be  ascertained  by  the  difference  be- 
tween the  contract  price  and  the  market  or  current  price  of  the  goods  at 
the  time  or  times  when  they  ought  to  have  been  delivered,  or,  if  no  time  was 
fixed,  then  at  the  time  of  the  refusal  to  deliver. 

52.  In  any  action  for  breach  of  contract  to  deliver  specific  or  ascertained 
goods  the  court  may,  if  it  thinks  fit,  on  the  application  of  the  plaintiff,  by  its 
judgment  or  decree  direct  that  the  contract  shall  be  performed  specifically, 
without  giving  the  defendant  the  option  of  retaining  the  goods  on  payment 
of  damages.  The  .ludgment  or  decree  may  be  unconditional,  or  upon  such 
terms  and  conditions  as  to  damages,  payment  of  the  price,  and  otherwise,  as 
to  the  court  may  seem  just,  and  the  application  by  the  plaintiff  may  be  made 
at  any  time  before  judgment  or  decree. 

The  provisions  of  this  section  shall  be  deemed  to  be  supplementary  to, 
and  not  in  derogation  of,  the  right  of  specific  implement  in  Scotland. 

53. — (1.)  Where  there  is  a  breach  of  warranty  by  the  seller,  or  where  the 
buyer  elects,  or  is  compelled,  to  treat  any  breach  of  a  condition  on  the  part 
of  the  seller  as  a  breach  of  warranty,  the  buyer  is  not  by  reason  only  of 
such  broach  of  warranty  entitled  to  reject  the  goods ;    but  he  may 

(a.)  Set  up  against  the  seller  the  breach  of  warranty  in  diminution  or  ex- 
tinction of  the  price  ;   or 

(b.)  Maintain  an  action  against  the  seller  for  damages  for  the  breach 
of  warranty. 

(2.)  The  measure  of  damages  for  breach  of  warranty  is  the  estimated  loss 
directly  and  naturally  resulting,  in  the  ordinary  course  of  events,  from  the 
breach  of  warranty. 

(3.)  In  the  case  of  breach  of  warranty  of  quality  such  loss  is  prima  facie 
the  difference  between  the  value  of  the  goods  at  the  time  of  delivery  to  the 
buyer  and  the  value  they  would  have  had  if  they  had  answered  to  the  war- 
ranty. 

(4.)  The  fact  that  the  buyer  has  set  up  the  breach  of  warranty  in  diminu- 
tion or  extinction  of  the  price  does  not  prevent  him  from  maintaining  an 
action  for  the  same  breach  of  warranty  if  he  has  suffered  further  damage. 

(5.)  Nothing  in  this  section  shall  prejudice  or  affect  the  buyer's  right  of 
rejection  in  Scotland  as  declared  by  this  Act. 

54.  Nothing  in  this  Act  shall  affect  the  right  of  the  buyer  or  the  seller 
to  recover  interest  or  special  damages  in  any  case  where  by  law  interest  or 
special  damages  may  be  recoverable,  or  to  recover  money  paid  where  the 
consideration  for  the  payment  of  it  has  failed. 

PART  VI 

Supplementary 

55.  Where  any  right,  duty,  or  liability,  would  arise  under  a  contract  of 
sale  by  implication  of  law,  it  may  be  negatived  or  varied  by  express  agree- 
ment or  by  the  course  of  dealing  between  the  parties,  or  by  usage,  if  the 
usage  be  such  as  to  bind  both  parties  to  the  contract. 


784  APPENDIX  (Pt.  6 

56.  Where,  by  this  Act,  any  reference  is  made  to  a  reasonable  time  the 
question  what  is  a  reasonable  time  is  a  question  of  fact. 

57.  Where  any  right,  duty,  or  liability  is  declared  by  this  Act,  it  may, 
unless  otherwise  by  this  Act  provided,  be  enforced  by  action. 

5S.     In  the  case  of  a  sale  by  auction — 

(1.)  "\ATiere  goods  are  put  up  for  sale  by  auction  in  lots,  each  lot  is  prima 
facie  deemed  to  be  the  subject  of  a  separate  contract  of  sale. 

(2.)  A  sale  by  auction  is  complete  when  the  auctioneer  announces  its  com- 
pletion by  the  fall  of  the  hammer,  or  in  other  customary  manner.  Until 
such  announcement  is  made  the  bidder  may  retract  his  bid. 

(o.)  Wliere  a  sale  by  auction  is  not  notified  to  be  subject  to  a  right  to  bid 
on  behalf  of  the  seller,  it  shall  not  be  lawful  for  the  seller  to  bid  himself  or 
to  employ  any  person  to  bid  at  such  sale,  or  for  the  auctioneer  knowingly 
to  take  any  bid  from  the  seller  or  any  such  person:  Any  sale  contravening 
this  rule  may  be  treated  as  fraudulent  by  the  buyer. 

(4.)  A  sale  by  auction  may  be  notified  to  be  subject  to  a  reserved  or  upset 
price,  and  a  right  to  bid  may  also  be  reserved  expressly  by  or  on  behalf  of 
the  seller. 

Where  a  right  to  bid  is  expressly  reserved,  but  not  otherwise,  the  seller, 
or  any  person  on  his  behalf,  may  bid  at  the  auction. 

59.  In  Scotland  where  a  buyer  has  elected  to  accept  goods  which  he  might 
have  rejected,  and  to  treat  a  breach  of  contract,  as  only  giving  rise  to  a 
claim  for  damages,  he  may,  in  an  action  by  the  seller  for  the  price,  be  re- 
quired, in  the  discretion  of  the  court  before  which  the  action  depends,  to 
consign  or  pay  into  court  the  price  of  the  goods,  or  part  thereof,  or  to  give 
other  reasonable  security  for  the  due  payment  thereof. 

60.  The  enactments  mentioned  in  the  schedule  to  this  Act  are  hereby  re- 
pealed as  from  the  commencement  of  this  Act  to  the  extent  in  that  schedule 
mentioned. 

Provided  that  such  repeal  shall  not  affect  anything  done  or  suffered,  or 
any  right,  title,  or  interest  acquired  or  accrued  before  the  commencement 
of  this  Act,  or  any  legal  proceeding  or  remedy  in  respect  of  any  such  thing, 
right,  title,  or  iuteresi. 

61.— (1.)  The  rules  in  bankruptcy  relating  to  contracts  of  sale  shall  con- 
tinue to  apply  thereto,  notwithstanding  anything  in  this  Act  contained. 

(2.)  The  rules  of  the  common  law,  including  the  law  merchant,  save  in  so 
far  as  they  are  inconsistent  with  the  express  provisions  of  this  Act,  and  in 
particular  the  rules  relating  to  the  law  of  principal  and  agent  and  the  effect 
of  fraud,  misrepresentation,  duress  or  coercion,  mistake,  or  other  invalidating 
cause,  shall  continue  to  apply  to  contracts  for  the  sale  of  goods. 

(3.)  Nothing  in  this  Act  or  in  any  repeal  effected  thereby  shall  affect  the 
enactments  relating  to  bills  of  sale,  or  any  enactment  relating  to  the  sale 
of  goods  which  is  not  expressly  repealed  by  this, Act. 

(4.)  The  provisions  of  this  Act  relating  to  contracts  of  sale  do  not  apply  to 
any  transaction  in  the  form  of  a  contract  of  sale  which  is  intended  to  op- 
erate by  way  of  mortgage,  pledge,  charge,  or  other  security. 

(5.)  Nothing  in  this  Act  shall  prejudice  or  aft'ect  the  landlord's  right  of 
hypothec  or  sequestration  for  rent  in  Scotland. 

62. — (1.)  In  this  Act,  unless  the  context  or  subject  matter  otherwise  re- 
quires— 

"Action"  includes  counterclaim  and  set-off,  and  in  Scotland  condescendence 
and  claim  and  compensation. 

"Bailee"  in  Scotland  includes  custodier. 

"Buyer,"  means  a  person  who  buys  or  agrees  to  buy  goods. 


§§    62-64)  SALE    OF   GOODS    ACT  785 

"Contracts  of  sale"  includes  an  agreement  to  sell  as  well  as  a  sale. 

"Defendant"  includes  in  Scotland  defender,  respondent,  and  claimant  in 
a  multiple-poinding. 

"Delivery"  means  voluntary  transfer  of  possession  from  one  person  to 
another. 

"Document  of  title  to  goods"  has  the  same  meaning  as  it  has  in  the 
Factors  Acts. 

"Factors  Acts"  means  the  Factors  Act,  l.'>89.  the  Factors  (Scotland)  Act, 
1890,  and  any  enactment  amending  or  substituted  for  the  same. 

"Fault"  means  wrongful  act  or  default. 

"Future  goods"  means  goods  to  be  manufactured  or  ac(iuired  by  the 
seller  after  the  making  of  the  contract  of  sale. 

"Goods"  include  all  chattels  personal  other  than  things  in  action  and  mon- 
ey, and  in  Scotland  all  corporeal  movables  except  money.  The  term  in- 
cludes emblements,  industrial  growing  crops,  and  things  attached  to  or  form- 
ing part  of  the  land  which  are  agreed  to  be  severed  before  sale  or  under  the 
contract  of  sale. 

"Lien"  in  Scotland  includes  right  of  retention. 

"Plainlift"  includes  pursuer,  complainer,  claimant  in  a  multiple-poinding 
and  defendant  or  defender  counterclaiming. 

"Property"  means  the  general  property  in  goods,  and  not  merely  a  special 
property. 

"Quality  of  goods"  includes  their  state  or  condition. 

"Sale"  includes  a  bargain  and  sale  as  well  as  a  sale  and  delivery. 

"Seller"  means  a  person  who  sells  or  agrees  to  sell  goods. 

"Specific  goods"  means  goods  identified  and  agreed  upon  at  the  time  a 
contract  of  sale  is  made. 

"Warranty"  as  regards  England  and  Ireland  means  an  agreement  with 
reference  to  goods  which  are  the  subject  of  a  contract  of  sale,  but  collateral 
to  the  main  purpose  of  such  contract,  the  breach  of  which  gives  rise  to  a 
claim  for  damages,  but  not  to  a  right  to  reject  the  goods  and  treat  the  con- 
tract as  repudiated. 

As  regards  Scotland  a  breach  of  warranty  shall  be  deemed  to  be  a  failure 
to  perform  a  material  part  of  the  contract. 

(2.)  A  thing  is  deemed  to  be  done  "in  good  faith"  within  the  meaning  of 
this  Act  when  it  is  in  fact  done  honestly,  whether  it  be  done  negligently  or 
not. 

(3.)  A  person  is  deemed  to  be  insolvent  within  the  meaning  of  this  Act 
who  either  has  ceased  to  pay  his  debts  in  the  ordinary  course  of  business,  or 
cannot  pay  his  debts  as  they  become  due,  whether  he  has  committed  an  act 
of  bankruptcy  or  not,  and  whether  he  has  become  a  notour  bankrupt  or  not. 

(4.)  Goods  are  in  a  "deliverable  state"  within  the  meaning  of  this  Act 
when  they  are  in  such  a  state  that  the  buyer  would  under  the  contract  be 
bound  to  take  delivery  of  them. 

63.  This  Act  shall  come  into  operation  on  the  first  day  of  January  one 
thousand  eight  hundred  and  ninety-four. 

64.  This  act  may  be  cited  as  the  Sale  of  Goods  Act,  1893. 
Wood  w.  Sales — 50 


INDEX 


[the  figures  refer  to  pages] 


ACCEPTANCE, 

Of  draft  for  price,  right  of  buyer  to  document  of  title  upon,  198-200. 
Of  goods  by  buyer,  effect  of,  upon  riglit  to  sue  for  breacli  of  warran- 
ty, 430-^41. 

ANIMALS, 

Sale  of  future  offspring  of,  10-15. 

APPROPRIATION, 

As  means  of  passing  property  in  unascertained  goods,  78-129. 
What  constitutes,  in  the  case  of  building  materials,  78-89. 
Setting  aside  or  marking  goods  as  appropriation,  89-116. 
Delivery  to  carrier  as  appropriation,  116-129. 

ATTACHING  CREDITOR, 

Rights  of,  in  case  of  conditional  sale,  224-243. 

BAILEE, 

Estoppel  of  owner  to  deny  authority  of,  to  sell,  201-223. 

BILL  OF  LADING, 

See  Document  of  Title. 

BONA  FIDE  PURCHASER  FOR  VALUE, 
Of  document  of  title,  166-200. 
From  bailee  or  factor,  201-223. 
From  conditional  vendee,  224-243. 
From  fraudulent  vendee,  275-307. 

CARRIER, 

Delivery  of  goods  to,  as  appropriation,  116-129. 

Effect  of  "C.  O.  D.,"  119-125. 

Effect  of  "f.  o.  b.,"  125-129. 

CASH  SALE,  44-55. 

CONDITIONAL  SALE, 

Transfer  of  property  in,  224-243. 
Risk  of  loss  in,  327,  328. 
Remedies  of  seller  in,  557-577. 

CROPS, 

Sale  of  future,  6-10. 

DELIVERY, 

As  essential  to  transfer  of  property,  249-253. 

DELIVERY,  DUTY  OF   SELLER  TO  MAKE,  394^15. 
Time  of,  395-400. 
Place  of,  394,  395. 

What  constitutes,  when  goods  are  in  possession  of  third  person,  400,  401. 
Effect  of  delivery,  defective  as  to  quantity,  401-411. 
Effect  of  delivery  defective  as  to  quality,  411-413. 
Effect  of  buyer's  failure  to  pay  for  goods,  413-415. 

DESTRUCTION  OF  THE  GOODS, 
Risk  of  loss,  308-330. 
See  Risk  of  Loss. 

WooDw.  Sales  (787) 


788  INDEX 

[The  figures  refer  to  pages] 

DIVISIBLE  CONTRACTS, 

Effect  of  seller's  default  in  delivery  of  one  installment,  401^11. 
Effect  of  buyer's  default  in  paying  for  one  installment,  413-415. 
DOCUMENT  OF  TITLE, 

Effect  of  issue  of,  and  of  negotiation  or  transfer  of,  129-200. 

Effect  of  issue  of,  where  tlie  seller  or  his  agent  is  consignee,  129-146. 

Effect  of  issue  of,  where  the  buyer  is  consignee,  147-156. 

Effect  of  issue  of,  where  a  third  person  is  consignee,  156-166. 

Effect  of  negotiation  or  transfer  of,  166-200. 

ESTOPPEL   OF   OWNER, 

In  case  of  conditional  sale,  241-243. 

To  deny  authority  of  bailee  or  factor  to  sell,  201-223. 

To  deny  authority  of  holder  of  document  of  title  to  sell,  189-197. 

EXPRESS  WARRANTIES,  331-352. 
Early  law,  331,  332. 

Affirmation  of  fact  as  warranty,  332-352. 
Is  intent  to  warrant  essential,  336-343. 
Description  of  goods  as  warranty,  343-347. 
Patent  defects,  347-351. 
Warranty  previous  to  sale,  343-347,  351,  352. 

FACTOR, 

Estoppel  of  ow^ner  to  deny  authority  of,  to  sell,  201-223. 
FACTORS'  ACTS,  203-209,  213-218,  222-223. 

FITNESS  FOR  PARTICULAR  USE, 
Implied  warranty  of,  372-384. 

FOOD, 

Implied  warranty  in  sale  of,  388-394. 
FRAUD, 

Effect  of  fraud  on  the  seller,  275-307. 

In  retention  of  possession  by  sellef  after  transfer  of  property,  243-274. 

In  retention  of  property  by  seller  after  delivery,  224-243. 
FRAUDS,  STATUTE  OF,  594-751. 

See  Statute  of  Frauds. 

FUNGIBLE   GOODS, 

Transfer  of  property  in,  56-78. 
FUTURE  GOODS, 

Sale  of,  15-17. 

GRAIN  AND  OTHER   FUNGUBLE   GOODS, 
Transfer  of  property  in,  56-78. 

IMPLIED  WARRANTY  OF  TITLE,  352-357. 

IMPLIED  WARRANTY  OF  QUALITY,  357-394. 

Merchantability,   357-372. 
Fitness  for  particular  use,  372-384. 
In  sale  by  sample,  384-388. 
In  sale  of  provisions,  388-394. 

INDICIA  OF  OWNERSHIP, 

Estoppel  of  owner  to  deny  authority  of  one  intrusted  with,  to  sell,  201- 
203,   209-212. 

INSPECTION, 

Buyer's  right  of,  416-430. 


INDEX  789 

[The  figures  refer  to  pages] 

LIEN, 

Seller's,  446-464. 

Effect  of  delivery  of  part  of  goods,  450^58. 
Effect  of  expiration  of  period  of  credit,  450-458. 
Effect  of  insolvency  of  buyer,  446-458. 
Rights  of  bona  fide  purchasers,  450-458,  461^64. 
Waiver  of,  458-461. 

Right  of  seller  to  retake  goods  where  delivery  has  been  secured  by  fraud, 
461^64. 

MERCHANTABILITY, 

Implied  warranty  of,  357-372. 

MISTAKE, 

As  to  person  contracting,  effect  of,  275-282. 

PAYMENT, 

Duty  of  buyer  to  make,  413-415. 

See  Delivery,  Duty  of  Seller  to  JNIake. 

POSSESSION, 

Reteutiou  of,  by  seller  after  transfer  of  property,  243-274, 
See  Retention  of  Possession  by  Seller. 

POTENTIAL  GOODS, 
Sale  of,  6-15. 

PRICE, 

Right  of  seller  to  recover,  543-577. 

See  Remedies  of  the  Seller  on  the  Contract. 

PROPERTY, 

Retention  of,  by  seller  after  delivery  to  buyer,  224-243. 
Transfer  of. 

See  Transfer  of  Property  and  Title. 

PROVISIONS, 

Implied  warranty  in  sale  of,  388-394. 

RECOUPMENT, 

Buyer's  right  of,  578-582. 

REJECTION   OF  GOODS  BY   BUYER, 

Effect  of,  441-145. 

Right  of  buyer  to  resell  for  seller,  442-445. 

REMEDIES  OF  THE  BUYER  ON  THE  CONTRACT,  .578-593. 

REMEDIES  OF  THE  SELLER  ON  THE  CONTRACT,  543-577. 
In  general,  543-556. 
In  "conditional  sales,"  557-577. 
See  Conditional  Sale. 

RESALE  AND  RESCISSION,   SELLER'S  RIGHTS  OF,  524-542. 
In  general,  524-530. 

Requirements  as  to  conduct  of  sale,  530-542. 
Requirements  as  to  notice  of  sale,  533-542. 
Seller's  right  to  retain  proceeds  of  sale  in  excess  of  price,  542. 

RESCISSION, 

Buyer's  right  of,  585-593. 
Seller's  right  of,  524-542. 

See  Resale  and  Rescission,  Seller's  Rights  of. 

RETENTION   OF   POSSESSION   BY   SELLER, 
After  transfer  of  property,  243-274. 
What  constitutes,  253-274. 
What  creditors  are  protected,  264-267,  269-272. 


790  INDEX 

[The  figures  refer  to  pages] 

RETENTION  OF  PROPERTY, 

By  seller  after  delh'ery  to  buyer,  224-243. 

RISK  OF  LOSS,  308-330. 

In  conditional  sales,  327,  328. 

Where  goods  are  shipped  under  a  bill  of  lading,  156-166,  328. 

Effect  of  default  upon  risk,  328-330. 

"SALE  OR  RETURN"  AND  "SALE  ON  APPROVAL,"  38^4. 

SAMPLE, 

Warranty  in  sale  by,  384-388. 

SPECIFIC  GOODS, 

Transfer  of  property  in,  18-5.5. 

Unconditional  contract  to  sell,  in  general,  18-21. 

Where  something  remains  to  be  done,  21-37. 

Where  goods  are  to  be  weighed,  measured  or  counted,  25-37. 

"Sale  or  return"  and  "sale  on  approval,"  38-44. 

"Cash  sale,"  44-55. 

SPENT  BILL  OF  LADING, 

Negotiation  or  transfer  of,  169-181. 

STATUTE  OF  FRAUDS,  594-751. 
Text  of  statute,  594. 
"Contract  for  the  sale  of  goods,"  594-616. 

Distinguished  from  contracts  for  work  and  labor,  594-597. 

Distinguished  from  contract  for  sale  of  interest  in  land,  597-615. 

Choses  in  action,  615,  616. 
"For  the  price  of  £10  or  upwards,"  616-621. 
"Shall  be  allowed  to  be  good,"  621-639. 
Acceptance  and  receipt  of  part  of  goods,  639-682. 
Earnest  or  part  payment,  683-699. 
The  note  or  memorandum,  699-751. 

Sufficiency  of  pencil  memorandum,  699,  700. 

Sufficiency  of  signature,  699-707. 

What  the  memorandum  must  show,  709-715. 

Must  the  memorandum  be  delivered,  705-707. 

Admissibility  of  parol  evidence  to  explain  memorandum,  716-723. 

Signing  by  agent  or  broker,  699,  700,  72.3-727. 

Separate  writings  as  memorandum,  727-743. 

Variation  of  written  memorandum  by  parol,  743-751. 

STOPPAGE   IN  TRANSITU, 
Seller's  right  of,  464-524. 
Origin  of  doctrine  in  equity,  464,  465. 
Adoption  by  courts  of  law,  465. 
Nature  of  right,  leading  case,  465-475. 

Exercise  of  right  as  against  purchasers  from  buyer  or  pledgees,  465--483. 
Transit  and  termination  thereof,  477-517. 
Insolvency  of  buyer,  517-524. 
Rights  of  parties  after  goods  are  stopped,  517-524. 

SUBJECT-MATTER  OF  THE  CONTRACT,  1-17. 
Goods  that  have  ceased  to  exist,  1-5. 
Potential  goods,  6-15. 
Future  goods,  15-17. 
Animals,  future  offspring  of,  10-15. 
Crops,  future,  6-10. 

TITLE, 

Retention  of,  after  delivery  to  buyer,  224-243. 
Transfer   of. 

See  Transfer  of  Property  and  Title. 
Implied  warranty  of,  352-357. 


INDEX  7i)l 

[The  figures  refer  to  pages] 

TRANSFER  OF  PROPERTY  AND  TITLE,  18-307. 

Uncouditional  contract  to  sell  specific  goods,  in  general,  18-21. 

Contract  to  sell  specific  goods  to  which  something  remains  to  be  done, 
21-37. 

Contract  to  seU  specific  goods  to  be  weighed,  measured,  or  counted,  25-37. 

"Sale  or  return"  and  "sale  on  approval,"  38-44. 

"Cash  sale,"  44-.55. 

Contract  to  sell  unascertained  goods  of  a  fungible  nature,  56-78. 

Contract  to  sell  unascertained  goods,  appropriation,  78-116. 

Delivery  to  carrier  as  appropriation,  116-129. 

Effect  of  issue  of  document  of  title  and  of  negotiation  or  transfer  there- 
of, 129-200. 

Effect  of  sale  by  bailee  or  factor,  201-223. 

Effect  of  retention  of  property  by  seller  after  delivery  to  buyer,  224—243. 

Effect  of  retention  of  possession  by  seller  after  transfer  of  property, 
243-274. 

Effect  of  fraud  on  the  seller,  275-307. 

UNASCERTAINED  GOODS, 

Transfer  of  property  in,  78-129. 

WAREHOUSE  RECEIPT, 
See  Document  of  Title. 

WARRANTIES, 

Express,  331-352. 

See  Express  Warranties. 

WARRANTY  OF  TITLE, 
Implied,  352-357. 

WARRANTY  OF  QUALITY, 
Implied,  357-394. 

See  Implied  Warranty  of  Quality. 


WSST  FUBLI8HIN0  CO.,  FBINTEBS,  ST.  PAUL,  KHm. 


D     000  321  189     3 


